THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 


RACE    DISTINCTIONS 
IN     AMERICAN     LAW 


BY 


GILBERT  THOMAS  STEPHENSON,  A.M.,  LL.B. 


NEW     YORK     AND     LONDON 

D.    APPLETON     AND     COMPANY 

1910 


COPYRIGHT,  1910,  BY 
D.  APPLETON  AND  COMPANY 


Published  September,  1910 


College 
Library 


S'SS 


TO  MY 
FATHER  AND  MOTHER 


1326233 


PKEFACE 


AMEKICA  has  to-day  no  problem  more  perplexing  and 
disquieting  than  that  of  the  proper  and  permanent  rela- 
tions between  the  white  and  the  colored  races.  Although 
it  concerns  most  vitally  the  twenty  millions  of  Caucasians 
and  the  eight  millions  of  Negroes  in  eleven  States  of  the 
South,  still  it  is  a  national  problem,  because  whatever 
affects  one  part  of  our  national  organism  concerns  the 
whole  of  it.  Although  this  question  has  been  considered 
from  almost  every  conceivable  standpoint,  few  have  turned 
to  the  laws  of  the  States  and  of  the  Nation  to  see  how 
they  bear  upon  it.  It  was  with  the  hope  of  gaining  new 
light  on  the  subject  from  this  source  that  I  undertook  the 
present  investigation. 

I  have  examined  the  Constitutions,  statutes,  and  judi- 
cial decisions  of  the  United  States  and  of  the  States  and 
Territories  between  1865  and  the  present  to  find  the  laws 
that  have  made  any  distinctions  between  persons  on  the 
basis  of  race.  Reference  has  been  made  to  some  extent 
to  laws  in  force  before  1865,  but  only  as  the  background 
of  later  legislation  and  decision.  In  order  to  make  this 
study  comparative  as  well  as  special,  the  writer  has  aban- 
doned his  original  plan  of  confining  it  to  the  Southern 
States  and  laws  applicable  only  to  Negroes,  and  has  ex- 

vii 


PREFACE 

tended  it  to  include  the  whole  United  States  and  all 
the  races. 

Immediately  after  the  Negro  became  a  free  man  in 
1865,  the  Federal  Government  undertook,  by  a  series  of 
constitutional  amendments  and  statutory  enactments,  to 
secure  to  him  all  the  rights  and  privileges  of  an  American 
citizen.  My  effort  has  been  to  ascertain  how  far  this  at- 
tempt has  been  successful.  The  inquiry  has  been:  After 
forty-five  years  of  freedom  from  physical  bondage,  how 
much  does  the  Negro  lack  of  being,  in  truth,  a  full-fledged 
American  citizen  ?  What  limitations  upon  him  are  allowed 
or  imposed  by  law  because  he  is  a  Negro? 

This  is  not  meant,  however,  to  be  a  legal  treatise. 
Although  the  sources  are,  in  the  main,  constitutions,  stat- 
utes, and  court  reports,  an  effort  has  been  made  to  state 
the  principles  in  an  untechnical  manner.  Knowing  that 
copious  citations  are  usually  irksome  to  those  who  read  for 
general  information,  I  have  relegated  all  notes  to  the  ends 
of  the  chapters  for  the  benefit  of  the  more  curious  reader 
who  often  finds  them  the  most  profitable  part  of  a  book. 
There  he  will  find  citations  of  authorities  for  practically 
every  important  statement  made. 

All  the  chapters,  except  the  last  two,  were  published 
serially  in  The  American  Law  Review  during  the  year 
1909.  The  substance  of  the  chapter  on  "  Separation  of 
Eaces  in  Public  Conveyances  "  was  published  also  in  The 
American  Political  Science  Review  for  May,  1909. 

I  wish  that  I  could  make  public  acknowledgment  of 
my  indebtedness  to  all  who  have  helped  me  in  the  prep- 
aration of  this  volume.  Hundreds  of  public  officials  in  the 
South — mayors  of  cities,  clerks  of  courts,  attorneys-gen- 

viii 


PREFACE 

eral,  superintendents  of  public  instruction,  etc. — have  re- 
sponded generously  to  my  requests  for  information.  I  am 
thankful  to  Mr.  John  H.  Arnold,  Librarian  of  the  Har- 
vard Law  School,  for  access  to  the  stacks  of  that  library, 
without  which  privilege  my  work  would  have  been  greatly 
delayed,  and  to  his  assistants  for  their  uniform  courtesy 
while  I  was  making  such  constant  demands  upon  them. 
I  am  under  especial  obligation  to  Professor  Albert  Bush- 
nell  Hart,  of  Harvard  University,  for  his  direction  and 
assistance  in  my  examination  of  the  sources  and  his  valu- 
able advice  while  I  have  been  preparing  the  material  for 
publication  in  this  form;  also  to  Mr.  Charles  E.  Grin- 
nell,  former  Editor  of  The  American  Law  Review,  for 
his  encouragement  and  suggestions  during  the  preparation 
of  the  articles  for  his  magazine.  Lastly,  I  would  express 
my  gratitude  to  Mr.  Charles  Vernon  Imlay,  of  the  New 
York  Bar,  the  value  of  whose  painstaking  help  in  the  re- 
vision of  the  manuscript  of  this  book  is  truly  inestimable. 

GILBERT  THOMAS  STEPHENSON. 

WARREN  PLACE,  PENDLETON,  N.  C. 
June  1,  1910. 


CONTENTS 


CHAPTER  I 

PAGE 

INTRODUCTORY 1-11 

What  is  a  Race  Distinction  in  Law 1 

Distinctions  and  Discriminations  Contrasted     ...  2 

Legal  and  Actual  Distinctions 5 

All  Race  Elements  Included 6 

Period  Covered  from  1865  to  Present                                 .  7 


CHAPTER  II 

WHAT  is  A  NEGRO? 12-25 

Legal  Definition  of  Negro 12 

Proper  Name  for  Black  Men  in  America     ....       20 

CHAPTER   III 
DEFAMATION  TO  CALL  A  WHITE  PERSON  A  NEGRO       .       .26-34 

CHAPTER  IV 

THE  "BLACK  LAWS"  OP  1865-68 35-66 

"Black  Laws"  of  Free  States 36 

Restrictions  upon  Movement  of  Negroes     ....  40 

Limitations  upon  Negroes  in  Respect  to  Occupations       .  41 

Sale  of  Firearms  and  Liquor  to  Negroes      ....  43 

Labor  Contracts  of  Negroes 46 

Apprentice  Laws      . 53 

Vagrancy  Laws 58 

Pauper  Laws 60 

xi 


CONTENTS 
CHAPTER  V 

PAGE 

RECONSTRUCTION  OF  MABITAL  RELATIONS       .       .       .        67-77 

Remarriages 68 

Certificates  of  Marriage 70 

Slave  Marriages  Declared  Legal  by  Statute        ...  73 

Marriages  Between  Slaves  and  Free  Negroes      ...  74 

Federal  Legislation 75 

CHAPTER  VI 

INTERMARRIAGE  AND  MISCEGENATION        ....       78-101 

Intermarriage  During  Reconstruction 78 

Present  State  of  the  Law  Against  Intermarriage       .       .  81 

To  Whom  the  Laws  Apply 81 

Effect  of  Attempted  Intermarriage 83 

Punishment  for  Intermarriage 84 

Punishment  for  Issuing  Licenses 86 

Punishment  for  Performing  the  Ceremony  ....  87 

Cohabitation  Without  Intermarriage 88 

States  Repealing  Laws  Against  Intermarriage    ...  89 

Marriages  Between  the  Negro  and  Non-Caucasian  Races  90 

Effect  Given  to  Marriages  in  Other  States  ....  92 

Intermarriage  and  the  Federal  Constitution       ...  95 

Intermarriages  in  Boston 98 

CHAPTER  VII 

CIVIL  RIGHTS  OF  NEGROES 102-153 

Federal  Civil  Rights  Legislation 103 

State  Legislation  Between  1865  and  1883  .       .       .       .111 

In  States  Outside  of  South 112 

In  South 115 

State  Legislation  After  1883 120 

In  South 120 

In  States  Outside  of  South 120 

Hotels 124 

Restaurants 127 

Barber-shopa 129 

xii 


CONTENTS 

PAGE 

Bootblack  Stands 130 

Billiard-rooms 131 

Saloons .132 

Soda  Fountains 133 

Theatres 134 

Skating-Rinks 136 

Cemeteries 136 

Race  Discrimination  by  Insurance  Companies   .       .       .  138 

Race  Discriminations  by  Labor  Unions       ....  140 

Churches 141 

Negroes  in  the  Militia 144 

Separation  of  State  Dependents 146 

CHAPTER  VIII 

SEPARATION  OF  RACES  IN  SCHOOLS 154-206 

Berea  College  Affair 154 

Exclusion  of  Japanese  from  Public  Schools  of  San  Fran- 
cisco      159 

Dr.  Charles  W.  Eliot  on  Separation  of  Races  in  Schools  .  163 

Separation  Before  1865 165 

Present  Extent  of  Separation  in  Public  Schools         .       .170 

In  South 170 

In  States  Outside  of  South 177 

Separation  in  Private  Schools 190 

Equality  of  Accommodations 192 

Division  of  Public  School  Fund 194 

CHAPTER  IX 

SEPARATION  OP  RACES  IN  PUBLIC  CONVEYANCES    .       .     207-236 

Origin  of  "Jim  Crow" 208 

Development  of  Legislation  Prior  to  1875  ....  208 

Legislation  Between  1865  and  1881 211 

Separation  of  Passengers  on  Steamboats     .       .       .       .214 

Separation  of  Passengers  in  Railroad  Cars  ....  216 

Interstate  and  Intrastate  Travel 217 

Sleeping  Cars 219 

Waiting-Rooms 220 

Trains  to  which  Laws  do  not  Apply     ....  221 

xiii 


CONTENTS 

PAGE 

Passengers  to  whom  Law  does  not  Apply    .        .        .  222 

Nature  of  Accommodations 223 

Means  of  Separation 224 

Designation  of  Separation 225 

Punishment  for  Violating  Law 225 

Separation  of  Postal  Clerks 227 

Separation  of  Passengers  in  Street  Cars       ....  227 

Present  Extent  of  Separation 228 

Method  of  Separation 229 

Enforcement  of  Laws 231 

Exemptions .       .  232 

CHAPTER  X 

NEGRO  IN  COURT  ROOM 237-280 

As  Spectator 237 

As  Judge 238 

As  Lawyer 239 

As  Witness 241 

As  Juror 247 

Actual  Jury  Service  by  Negroes  in  South    .       .       .  253 

Separate  Courts 272 

Different  Punishments 273 

CHAPTER  XI 

SUFFRAGE 281-347 

Negro  Suffrage  Before  1865 282 

Suffrage  Between  1865  and  1870 285 

Suffrage  Between  1870  and  1890 288 

Southern  Suffrage  Amendments  Since  1890        .       .       .  294 

Citizenship 296 

Age 297 

Sex 298 

Residence 298 

Payment  of  Taxes 299 

Ownership  of  Property 300 

Educational  Test 301 

"Grandfather  Clauses" 305 

"Understanding  and  Character  Clauses"    .       .       .  308 

Persons  Excluded  from  Suffrage 310 

xiv 


CONTENTS 

PAGE 

Suffrage  in  Insular  Possessions  of  United  States        .       .     312 
Constitutionality  of  Suffrage  Amendments         .       .       .313 

Maryland  and  Fifteenth  Amendment 317 

Extent  of  Actual  Disfranchisement 320 

Qualifications  for  Voting  in  the  United  States    .       .       .     322 


CHAPTER  XII 

RACE  DISTINCTIONS  versus  RACE  DISCRIMINATIONS        .     348-362 

Race  Distinctions  not  Confined  to  One  Section         .       .  348 

Race  Distinctions  not  Confined  to  One  Race      .        .       .  350 

Race  Distinctions  not  Decreasing 351 

Distinctions  not  Based  on  Race  Superiority       .        .        .  353 
Solution  of  Race  Problem  Hindered  by  Multiplicity  of 

Proposed  Remedies 354 

Search  for  a  Common  Platform 355 

Proper  Place  of  Race  Distinctions 356 

Obliteration  of  Race  Discriminations 358 

TABLE  OF  CASES  CITED    .           363 

INDEX  369 


RACE    DISTINCTIONS   IN 
AMERICAN  LAW 


CHAPTER   I 

INTRODUCTORY 

WHAT   IS   A   RACE   DISTINCTION   IN   LAW? 

A  EACE  distinction  in  the  law  is  a  requirement  imposed 
by  statute,  constitutional  enactment,  or  judicial  decision, 
prescribing  for  a  person  of  one  race  a  rule  of  conduct 
different  from  that  prescribed  for  a  person  of  another  race. 
If,  for  instance,  a  Negro  is  required  to  attend  one  public 
school,  a  Mongolian  another,  and  a  Caucasian  a  still  dif- 
ferent one,  a  race  distinction  is  created,  because  the  per- 
son must  regulate  his  action  accordingly  as  he  belongs  to 
one  or  another  race.  Or,  if  a  person,  upon  entering  a 
street  car,  is  required  by  ordinance  or  statute  to  take  a  seat 
in  the  front  part  of  the  car  if  he  is  a  Caucasian,  but  in 
the  rear. if  he  is  a  Negro,  this  rule  is  a  race  distinction 
recognized  by  law.  Again,  a  race  distinction  is  made  by 
the  law  when  intermarriage  between  Negroes  and  Cau- 
casians is  prohibited. 

Distinctions  in  law  have  been  made  on  grounds  other 

than  race.    Thus,  in  those  States  in  which  men  may  vote 

by  satisfying  the  prescribed  requirements,  but  in  which 

women  may  not  vote  under  any  circumstances,  the  law 

2  1 


INTRODUCTORY 

creates  a  distinction  on  the  basis  of  sex.  Laws  forbid- 
ding persons  under  seven  years  of  age  from  testifying  in 
court  and  laws  exempting  from  a  poll  tax  persons  under 
twenty-one  years  of  age  give  rise  to  age  distinctions. 
Other  instances  might  be  cited,  but  only  race  distinctions 
have  a  place  here. 


DISTINCTIONS    AND    DISCRIMINATIONS    CONTRASTED 

It  is  important,  at  the  outset,  to  distinguish  clearly 
between  race  distinctions  and  race  discriminations;  more 
so,  because  these  words  are  often  used  synonymously,  es- 
pecially when  the  Negro  is  discussed.  A  distinction  be- 
tween the  Caucasian  and  the  Negro,  when  recognized  and 
enforced  by  the  law,  has  been  interpreted  as  a  discrim- 
ination against  the  latter.  Negroes  have  recognized  that 
they  are  the  weaker  of  the  two  races  numerically,  except 
in  the  Black  Belt  of  the  South,  and  intellectually  the  less 
developed.  Knowing  that  the  various  race  distinctions 
have  emanated  almost  entirely  from  white  constitution- 
makers,  legislators,  and  judges,  they  regard  these  dis- 
tinctions as  expressions  of  the  aversion  on  the  part  of  the 
Caucasian  to  association  with  the  Negro.  Naturally, 
therefore,  they  have  resented  race  distinctions  upon  the 
belief  and,  in  many  instances,  upon  the  experience  that 
they  are  equivalent  to  race  discriminations. 

In  fact,  there  is  an  essential  difference  between  race 
distinctions  and  race  discriminations.  North  Carolina,  for 
example,  has  a  law  that  white  and  Negro  children  shall 
not  attend  the  same  schools,  but  that  separate  schools  shall 
be  maintained.  If  the  terms  for  all  the  public  schools 

2 


DISTINCTIONS    AND    DISCRIMINATIONS 

in  the  State  are  equal  in  length,  if  the  teaching  force  is 
equal  in  numbers  and  ability,  if  the  school  buildings  are 
equal  in  convenience,  accommodations,  and  appointments, 
a  race  distinction  exists  but  not  a  discrimination.  Iden- 
tity of  accommodation  is  not  essential  to  avoid  the  charge 
of  discrimination.  If  there  are  in  a  particular  school  dis- 
trict twice  as  many  white  children  as  there  are  Negro  chil- 
dren, the  school  building  for  the  former  should  be  twice 
as  large  as  that  for  the  latter.  The  course  of  study  need 
not  be  the  same.  If  scientific  investigation  and  experience 
show  that  in  the  education  of  the  Negro  child  emphasis 
should  be  placed  on  one  course  of  study,  and  in  the  educa- 
tion of  the  white  child,  on  another ;  it  is  not  a  discrimina- 
tion to  emphasize  industrial  training  in  the  Negro  school,  if 
that  is  better  suited  to  the  needs  of  the  Negro  pupil,  and 
classics  in  the  white  school  if  the  latter  course  is  more 
profitable  to  the  white  child.  There  is  no  discrimina- 
tion so  long  as  there  is  equality  of  opportunity,  and  this 
equality  may  often  be  attained  only  by  a  difference  in 
methods. 

On  the  other  hand,  if  the  term  of  the  Negro  school 
is  four  months,  and  that  of  the  white,  eight;  if  the  teach- 
ers in  the  Negro  schools  are  underpaid  and  inadequately 
or  wrongly  trained,  and  the  teachers  of  the  white  schools 
are  well  paid  and  well  trained;  if  Negro  children  are 
housed  in  dilapidated,  uncomfortable,  and  unsanitary 
buildings,  and  white  children  have  new,  comfortable,  and 
sanitary  buildings;  if  courses  of  study  for  Negro  children 
are  selected  in  a  haphazard  fashion  without  any  regard 
to  their  peculiar  needs,  and  a  curriculum  is  carefully 
adapted  to  the  needs  of  white  children;  if  such  condi- 

3 


INTRODUCTORY 

tions  exist  under  the  law,  race  distinctions  exist  which 
are  at  the  same  time  discriminations  against  Negroes. 
Where  the  tables  are  turned  and  Negro  children  are  ac- 
corded better  educational  advantages  than  white,  the  dis- 
criminations are  against  Caucasians. 

A  law  of  Virginia  requires  white  and  Negro  passen- 
gers to  occupy  separate  coaches  on  railroad  trains.  If  the 
coaches  for  both  races  are  equally  clean,  equally  com- 
fortable, and  equally  well  appointed;  if  both  races  are 
accorded  equally  courteous  service  by  the  employees  of  the 
railroad;  if,  in  short,  all  the  facilities  for  travel  are  equal 
for  both  races,  race  distinctions  exist  but  not  race  discrimi- 
nations. The  extent  of  accommodations  need  not  be  iden- 
tical. The  railroad  company,  for  instance,  need  furnish 
only  the  space  requisite  for  the  accommodation  of  each 
race.  If,  however,  the  white  passengers  are  admitted  to 
clean,  well-lighted,  well-ventilated  coaches  and  Negroes, 
to  foul,  unclean,  uncomfortable  coaches;  if  white  coaches 
are  well-policed,  while  Negro  passengers  are  subjected  to 
the  insults  of  disorderly  persons;  if,  in  other  words,  the 
Negro  passenger  does  not  receive  as  good  service  for  his 
fare  as  the  white,  a  discrimination  against  the  Negro  is 
made  under  the  guise  of  a  legal  distinction. 

In  like  manner,  one  might  consider  each  of  the  race 
distinctions  recognized  in  the  law  and  show  how  it  may 
be  applied  so  as  not  to  work  a  discrimination  against  either 
race  and,  as  easily,  how  it  may  be  used  to  work  an  injustice 
to  the  weaker  race.  A  race  distinction  connotes  a  differ- 
ence and  nothing  more.  A  discrimination  necessarily  im- 
plies partiality  and  favoritism. 


LEGAL    AND    ACTUAL    DISTINCTIONS 
LEGAL   AND   ACTUAL   DISTINCTIONS 

There  is  a  difference  between  actual  race  distinctions 
— those  practiced  every  day  without  the  sanction  of  law — 
and  legal  race  distinctions — those  either  sanctioned  or 
required  by  statutes  or  ordinances.  Law  is  crystallized 
custom.  Eace  distinctions  now  recognized  by  law  were 
habitually  practiced  long  before  they  crystallized  into 
statutes.  Thus,  actual  separation  of  races  on  railroad 
coaches — if  not  in  separate  coaches,  certainly  in  separate 
Beats  or  portions  of  the  coach — obtained  long  before  the 
"Jim  Crow"  laws  came  into  existence.  Moreover,  mis- 
cegenation was  punished  before  the  legislature  made  it 
a  crime.  Some  race  distinctions  practiced  to-day  will 
probably  be  sanctioned  by  statute  in  the  future ;  others  will 
persist  as  customs.  In  some  Southern  cities,  for  instance, 
there  are  steam  laundries  which  will  not  accept  Negro 
patronage.  Everywhere  in  the  South  and  in  many  places 
in  other  sections,  there  are  separate  churches  for  the  races. 
It  is  practically  a  universal  custom  among  the  white  peo- 
ple in  the  South  never  to  address  a  Negro  as  "  Mister  "  or 
"  Mistress."  This  custom  obtains  to  some  extent  elsewhere. 
Thus,  in  a  recent  case  before  a  justice  of  the  peace  in  Dela- 
ware in  which  the  parties  were  Negroes,  one  of  them 
insisted  upon  speaking  of  another  Negro  as  "  Mister." 
The  justice  forbade  him  so  to  do,  and,  upon  his  persisting, 
fined  him  for  contempt.  Yet,  these  distinctions  and  many 
others  that  might  be  cited  are  not  required  by  law,  and 
some  of  them,  if  expressed  in  statutes,  would  be  uncon- 
stitutional. 

Most  race  distinctions,  however,  are  still  uncrystallized. 
5 


INTRODUCTORY 

But  these  will  be  mentioned  merely  for  illustration,  since 
the  purpose  here  is  to  discuss  only  those  distinctions  which 
have  been  expressed  in  constitutions,  statutes,  and  judicial 
decisions.  Mr.  Ray  Stannard  Baker  in  his  "  Following 
the  Colour  Line/' *•  has  admirably  depicted  actual  race  re- 
lations in  the  United  States.  He  has  gone  in  person  out 
upon  the  cotton  plantations  of  the  Lower  South;  into  the 
Negro  districts  of  cities  in  the  South,  East,  and  North; 
into  schools,  churches,  and  court  rooms ;  and  has  described 
how  the  Negro  lives,  what  he  does,  what  he  thinks  about 
himself  and  about  the  white  man,  and  what  the  white  man 
thinks  about  him.  By  studying  the  race  distinctions  he 
describes  from  the  other  standpoint  suggested — that  is, 
by  tracing  their  gradual  crystallization  into  statutes  and 
judicial  decisions,  a  better  understanding  may  be  had  of 
race  distinctions  in  general. 


ALL   RACE   ELEMENTS   INCLUDED 

Attention  will  be  directed  not  only  to  the  Negro  but 
to  other  races  in  the  United  States — the  Mongolian  in 
the  Far  West  and  the  Indian  in  the  Southwest.  Of  course, 
by  far  the  largest  race  element  after  the  Caucasian  is  the 
Negro  with  its  8,833,994  people  of  whom  eighty-four  and 
seven-tenths  per  cent,  are  in  the  thirteen  States  of  the 
South.  But  it  will  be  found  that  in  those  sections  where 
the  Indians  have  existed  or  still  exist  in  appreciable  num- 
bers and  come  into  association  with  the  Caucasian — that 
is,  where  they  do  not  still  maintain  their  tribal  relations 
— race  distinctions  have  separated  these  two  races.  This 
is  equally  true  of  the  Japanese  and  Chinese  in  the  Pacific 

6 


PERIOD  COVERED  FROM  1865  TO  PRESENT 

States.  Most  of  the  discussion  will  necessarily  be  of  the 
distinctions  between  Caucasians  and  Negroes,  but  as  dis- 
tinctions applicable  to  Mongolians  and  Indians  arise,  they 
will  be  mentioned  to  show  that  race  consciousness  is  not 
confined  to  any  one  section  or  race. 

PERIOD    COVERED   FROM    1865   TO    PRESENT 

Eace  distinctions  have  existed  and  have  been  recog- 
nized in  the  law  from  the  beginning  of  the  settlement  of 
the  New  World,  long  before  the  thirteen  colonies  became 
free  and  independent  States,  or  before  the  Federal  Consti- 
tution was  adopted..  The  first  cargo  of  Negroes  was 
landed  in  Virginia  in  1619,  only  twelve  years  after  the 
founding  of  Jamestown.  In  1630,  eleven  years  later,  the 
Virginia  Assembly  passed  the  following  resolution : 2 
"  Hugh  Davis  to  be  soundly  whipped  before  an  assembly 
of  Negroes  and  others,  for  abusing  himself  to  the  dishonor 
of  God  and  the  shame  of  Christians,  by  defiling  his  body 
in  lying  with  a  Negro."  Many  of  the  Colonies — later 
States — prohibited  intermarriage  between  Caucasians  and^ 
Negroes  whether  the  latter  were  slave  or  free.  The  Colo- 
nies and  States  prohibited  or  limited  the  movements  of 
free  Negroes  from  one  colony  or  State  to  another,  pre- 
scribed special  punishment  for  adultery  between  white  per- 
sons and  Negroes,  forbade  persons  of  color  to  carry  fire- 
arms, and  in  divers  other  ways  restricted  the  actions  of 
Negroes. 

It  is  not  so  profitable,  however,  at  this  day  to  study 
these  early  distinctions,  for  the  distinctions  based  on  race 
were  then  inseparably  interwoven  with  those  based  on  the 

7 


INTRODUCTORY 

state  of  slavery.  Thus,  it  is  impossible  to  say  whether 
a  law  was  passed  to  regulate  a  person's  actions  because  he 
was  a  slave  or  because  he  was  of  the  Negro  race.  More- 
over, the  laws  relating  to  race  and  slave  distinctions  prior 
to  1858  were  compiled  by  John  Codman  Hurd  in  his  two- 
volume  work  entitled  "  The  Law  of  Freedom  and  Bondage 
in  the  United  States,"  published  in  1858.  Any  attempt 
at  a  further  treatment  of  the  period  covered  by  that  work 
would  result  only  in  a  digest  of  a  multitude  of  statutes, 
most  of  which  have  been  obsolete  for  many  years.  But 
a  greater  reason  for  the  futility  of  a  discussion  of  race  dis- 
tinctions before  1865  is  that  prior  to  that  date,  as  it  has 
been  so  often  expressed,  the  Negro  was  considered  to  have 
no  rights  which  the  white  man  was  bound  to  respect.  The 
Dred  Scott  decision  3  in  1857  virtually  held  that  a  slave 
was  not  a  citizen  or  capable  of  becoming  one,  and  this 
dictum,  unnecessary  to  the  decision  of  the  case,  did  much, 
says  James  Bryce,4  "  to  precipitate  the  Civil  War."  If  the 
Negro  could  enjoy  only  licenses,  claiming  nothing  as  of 
right,  it  is  not  very  valuable  to  study  the  distinctions 
4  which  the  master  imposed  upon  him. 

The  year  1865  marked  the  beginning  of  the  present  era 
in  race  relations.  It  was  in  that  year  that  the  Negro  be- 
came a  free  man,  and  that  the  Federal  Government  under- 
took by  successive  legislative  enactments  to  secure  and 
guarantee  to  him  all  the  rights  and  privileges  which  the 
Caucasian  race  had  so  long  enjoyed  as  its  inalienable 
heritage. 

The  Emancipation  Proclamation  of  1862,  issued  as 
a  military  expedient,  declared  that,  unless  the  seceding 
States  were  back  in  the  Union  by  January  1,  1863,  all 

8 


PERIOD    COVERED    FROM    1865    TO    PRESENT 

x 

slaves  in  those  States  should  be  emancipated.  This  did 
not  apply  to  the  Union  States,  as  Delaware,  which  still 
had  slaves.  But  immediately  upon  the  cessation  of  hos- 
tilities, Congress  set  to  work  to  make  emancipation  gen- 
eral throughout  the  Union  and  to  give  the  Negro  all  the 
rights  of  a  citizen.  The  Thirteenth  Amendment  to  the 
Constitution,  ratified  December  18,  1865,  abolished  slavery 
and  involuntary  servitude  except  as  a  punishment  for 
crime.  The  following  April,  the  first  Civil  Eights  Bill 5 
was  passed,  which  declared  that  "  all  persons  born  in  the 
United  States  and  not  subject  to  any  foreign  power,  ex- 
cluding Indians  not  taxed,  are  hereby  declared  to  be  citi- 
zens of  the  United  States;  and  such-  citizens,  of  every  race 
and  color,  without  regard  to  any  previous  condition  of 
slavery  or  involuntary  servitude,  except  as  a  punishment 
for  crime  .  .  .  shall  have  the  same  right,  in  every  State 
and  Territory  in  the  United  States,  to  make  and  enforce 
contracts,  to  sue,  .  .  .  and  to  full  and  equal  benefit  of  alL 
laws  and  proceedings  in  the  security  of  persons  and  prop- 
erty, as  is  enjoyed  by  white  citizens,  and  shall  be  sub- 
ject to  like  punishments  and  penalties,  and  to  none 
other.  .  .  ." 

These  rights  were  enlarged  by  the  Fourteenth  Amend- 
ment, ratified  in  1868,  which  provides  that:  "All  persons 
born  or  naturalized  in  the  United  States,  and  subject  to 
the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside.  No  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges 
and  immunities  of  citizens  of  the  United  States;  nor  shall 
any  State  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law ;  nor  deny  to  any  person  within 

9 


INTRODUCTORY 

its  jurisdiction  the  equal  protection  of  the  laws."  Though 
the  word  "  Negro  "  is  not  mentioned  in  this  Amendment 
nor  in  any  of  the  subsequent  Federal  enactments,  it  is  not 
open  to  dispute  that  the  legislators  had  in  mind  primarily 
the  protection  of  the  Negro. 

Under  the  Fourteenth  Amendment,  the  Civil  Eights 
Bill  of  1866  was  reenacted  6  in  1870,  with  the  addition  that 
it  extended  to  all  persons  within  the  jurisdiction  of  the 
United  States,  and  that  it  provided  that  all  persons  should 
be  subject  to  like  taxes,  licenses,  and  exactions  of  every 
kind. 

The  same  year,  1870,  the  Fifteenth  Amendment  was 
ratified,  which  declared  that  the  right  of  citizens  of  the 
United  States  to  vote  should  not  be  denied  or  abridged 
by  the  United  States  or  by  any  States  on  account  of  race, 
color,  or  previous  condition  of  servitude. 

The  Civil  Rights  Bill 7  of  1875,  the  most  sweeping  of 
all  such  legislation  by  Congress,  declared  that  all  persons 
within  the  jurisdiction  of  the  United  States  should  be 
entitled  to  the  full  and  equal  enjoyment  of  the  accommo- 
dations, advantages,  facilities,  and  privileges  of  inns,  pub- 
lic conveyances  on  land  or  water,  theatres,  and  other 
places  of  public  amusement;  subject  only  to  the  condi- 
tions and  limitations  established  by  law,  and  applicable 
alike  to  citizens  of  every  race  and  color,  regardless  of  any 
previous  condition  of  servitude.  It  also  provided  that 
jurors  should  not  be  excluded  on  account  of  race,  color, 
or  previous  condition  of  servitude. 

An  enumeration  of  these  Federal  statutes  and  consti- 
tutional amendments  has  been  made  in  order  to  show 
the  efforts  of  Congress  to  secure  to  the  Negro  every  civil 

10 


NOTES 

and  political  right  of  a  full-fledged  citizen  of  the  United 
States.  Later  they  will  be  discussed  in  detail.  By  the 
Civil  Rights  Bill  of  1875,  Congress  apparently  intended 
to  secure  not  only  equal  but  identical  accommodations  in 
all  public  places  for  Negroes  and  Caucasians.  If  one 
looks  only  upon  the  surface  of  these  several  legislative 
enactments,  it  would  seem  impossible  to  have  a  race  dis- 
tinction recognized  by  law  which  did  not  violate  some 
Federal  statute  or  the  Federal  Constitution.  But  the  suc- 
ceeding pages  will  show  that,  under  the  shadow  of  the 
statutes  and  the  Constitution,  the  legislatures  and  courts 
of  the  States  have  built  up  a  mass  of  race  distinctions 
which  the  Federal  courts  and  Congress,  even  if  so  inclined, 
are  impotent  to  attack. 

NOTES 

1  Doubleday,  Page  &  Co.,  1908. 

2  1  Hen.  146,  quoted  in  Kurd's  "  Law  of  Freedom  and 
Bondage,"  I,  p.  229. 

8  19  How.  393  (1857). 

4  "  American  Commonwealth,"  I,  p.  257. 

5 14  Stat.  L.,  27,  chap.  31. 

6  16  Stat.  L.,  144,  chap.  114. 

7 18  Stat.  L.,  335,  chap.  114. 


CHAPTER   II 

WHAT    IS    A   NEGRO? 
LEGAL    DEFINITION    OF    NEGRO 

"  I  HAD  not  been  long  engaged  in  the  study  of  the  race 
problem  when  I  found  myself  face  to  face  with  a  curious 
and  seemingly  absurd  question :  '  What  is  a  Negro  ? ' " 
said  Mr.  Baker.1 

Absurd  as  the  question  apparently  is,  it  is  one  of  the 
most  perplexing  and,  at  times,  most  embarrassing  that  has 
faced  the  legislators  and  judges. 

If  race  distinctions  are  to  be  recognized  in  the  law,  it 
is  essential  that  the  races  be  clearly  distinguished  from 
one  another.  If  a  statute  provides  that  Negroes  shall  ride 
in  separate  coaches  and  attend  separate  schools,  it  is  nec- 
essary to  decide  first  who  are  included  under  the  term 
"  Negroes."  It  would  seem  that  physical  indicia  would 
be  sufficient,  and,  in  most  instances,  this  is  true.  It  is 
never  difficult  to  distinguish  the  full-blooded  Negro,  In- 
dian, or  Mongolian  one  from  the  other  or  from  the  Cau- 
casian. But  the  difficulty  arises  in  the  blurring  of  the 
color  line  by  amalgamation.  The  amount  of  miscegena- 
tion between  the  Mongolian  and  other  races  represented 
in  the  United  States  is  negligible;  but  the  extent  of  in- 
termixture between  the  Caucasian  and  the  Negro,  the 

12 


LEGAL    DEFINITION    OF    NEGRO 

Negro  and  the  Indian,  and  the  Caucasian  and  the  Indian 
is  appreciable,  and  problems  arising  from  it  are  serious. 

It  is  absolutely  impossible  to  ascertain  the  number  of 
mulattoes — that  is,  persons  having  both  Caucasian  and 
Negro  blood  in  their  veins — in  the  United  States.  Mr. 
Baker  2  says :  "  I  saw  plenty  of  men  and  women  who  were 
unquestionably  Negroes,  Negroes  in  every  physical  char- 
acteristic, black  of  countenance  with  thick  lips  and  kinky 
hair,  but  I  also  met  men  and  women  as  white  as  I  am, 
whose  assertions  that  they  were  really  Negroes  I  accepted 
in  defiance  of  the  evidence  of  my  own  senses.  I  have  seen 
blue-eyed  Negroes  and  golden-haired  Negroes;  one  Negro 
girl  I  met  had  an  abundance  of  soft,  straight,  red  hair. 
I  have  seen  Negroes  I  could  not  easily  distinguish  from 
the  Jewish  or  French  types;  I  once  talked  with  a  man 
I  took  at  first  to  be  a  Chinaman  but  who  told  me  he  was 
a  Negro.  And  I  have  met  several  people,  passing  every- 
where for  white,  who,  I  knew,  had  Negro  blood." 

A  separate  enumeration  of  mulattoes  has  been  made 
four  times— in  1850,  1860,  1870,  and  1890  respectively. 
The  census  authorities  themselves  said  that  the  figures 
were  of  little  value,  and  any  attempt  to  distinguish  Ne- 
groes from  mulattoes  was  abandoned  in  the  census  of  1900. 
If  a  person  is  apparently  white,  the  census  enumerator  will 
feel  a  delicacy  in  asking  him  if  he  has  Negro  blood  in  his 
veins.  If  the  enumerator  does  ask  the  question  and  if 
the  other  is  honest  in  his  answer,  it  is  often  that  the  lat- 
ter does  not  know  his  own  ancestry.  Dr.  Booker  T.  Wash- 
ington, for  instance,  has  said  that  he  does  not  know  who 
his  father  was.3  Marital  relations  among  Negroes  during 
slavery  were  so  irregular,  and  illicit  intercourse  between 

13 


WHAT    IS    A    NEGRO? 

white  men  and  slave  women  was  so  common  that  the  line 
of  ancestry  of  many  nralattoes  is  hopelessly  lost.  But  Mr. 
Baker  makes  the  rough  estimate,  which  doubtless  is  sub- 
stantially correct,  that  3,000,000  of  the  10,000,000  (circa) 
Negroes  are  visibly  mulattoes.  This  one  third  of  the 
total  Negro  population  represents  every  degree  of  blood, 
of  color,  and  of  physical  demarcation  from  the  fair  com- 
plexion, light  hair,  blue  eyes,  thin  lips,  and  sharp  nose 
of  the  octoroon,  who  betrays  scarcely  a  trace  of  his  Negro 
blood,  to  the  coal-black  skin,  kinky  hair,  brown  eyes,  thick 
lips,  and  flat  nose  of  the  man  who  has  scarcely  a  trace  of 
Caucasian  blood.  It  is  this  gradual  sloping  off  from  one 
race  into  another  which  has  made  it  necessary  for  the  law 
to  set  artificial  lines. 

The  difficulty  arising  from  the  intermixture  of  the 
races  was  realized  while  the  Negro  was  still  a  slave. 
Throughout  the  statutes  prior  to  1860,  one  finds  refer- 
ences to  "  persons  of  color,"  a  generic  phrase  including 
all  who  were  not  wholly  Caucasian  or  Indian.  This  ante- 
bellum nomenclature  has  been  brought  over  into  modern 
statutes.  It  is  surprising  to  find  how  seldom  the  word 
"  Negro  "  is  used  in  the  statutes  and  judicial  decisions. 

Some  States  have  fixed  arbitrary  definitions  of  "  per- 
sons of  color,"  "  Negroes,"  and  "  mulattoes  " ;  others,  hav- 
ing enacted  race  distinctions,  have  then  denned  whom 
they  intended  to  include  in  each  race.  This  has  been 
done  particularly  in  the  laws  prohibiting  intermarriage. 
The  Constitution  of  Oklahoma  4  provides  that  "  wherever 
in  this  Constitution  and  laws  of  this  State,  the  word  or 
words,  '  colored  '  or  '  colored  race,'  or  '  Negro,'  or  '  Negro 
race,'  are  used,  the  same  shall  be  construed  to  mean,  or 

14 


LEGAL   DEFINITION    OF   NEGRO 

apply  to  all  persons  of  African  descent.    The  term  *  white  * 
shall  include  all  other  persons." 

Taking  up  these  definitions  in  the  various  States — 
many  of  them  included  within  broader  statutes — one  finds 
that  Alabama,5  Kentucky,6  Maryland,7  Mississippi,8  North 
Carolina,9  Tennessee,10  and  Texas  "  define  as  a  person  of 
color  one  who  is  descended  from  a  Negro  to  the  third 
generation  inclusive,  though  one  ancestor  in  each  gen- 
eration may  have  been  white.  The  Code  Committee  of 
Alabama  of  1903  substituted  "  fifth  "  for  "  third/'  so  that 
at  present  in  that  State  one  is  a  person  of  color  who  has 
had  any  Negro  blood  in  his  ancestry  in  five  generations.12 
The  laws  of  Florida,13  Georgia,1*  Indiana,15  Missouri/6 
and  South  Carolina 17  declare  that  one  is  a  person  of  color 
who  has  as  much  as  one-eighth  Negro  blood :  the  laws  of 
Nebraska 18  and  Oregon  10  say  that  one  must  have  as  much 
as  one-fourth  Negro  blood  in  order  to  be  classed  with  that 
race.  Virginia 20  and  Michigan  apparently  draw  the  line 
in  a  similar  way.  In  Virginia,  a  marriage  between  a  white 
man  and  a  woman  who  is  of  less  than  one-fourth  Negro 
blood,  "if  it  be  but  one  drop  less,"  is  legal.  A  woman 
whose  father  was  white,  and  whose  mother's  father  was 
white,  and  whose  great-grandmother  was  of  a  brown  com- 
plexion, is  not  a  Negro  in  the  sense  of  the  statute.21  In 
1866,  the  court  of  Michigan,  under  a  law  limiting  the  suf- 
frage to  "white  male  citizens,"  held  that  all  persons 
should  be  considered  white  who  had  less  than  one-fourth 
of  African  blood.22  That  State  gave  the  right  to  vote  also 
to  male  inhabitants  of  Indian  descent,  but  its  court  held 
that  a  person  having  one-eighth  Indian  blood,  one-fourth 
or  three-eighths  African,  and  the  rest  white  was  not  in- 

15 


WHAT    IS    A    NEGRO? 

eluded  in  that  class.23  Ohio  limited  the  suffrage  to  white 
male  citizens  and  made  it  the  duty  of  judges  of  election 
to  challenge  any  one  with  a  "  distinct  and  visible  admix- 
ture of  African  blood,"  but  the  latter  requirement  was 
held  unconstitutional  in  1867,24  the  court  saying  that, 
where  the  white  blood  in  a  person  predominated,  he  was 
to  be  considered  white.  This  definition  is  interesting  be- 
cause it  is  the  only  instance  found  of  a  court's  saying 
that  a  person  with  more  than  half  white  blood  and  the 
rest  Negro  should  be  considered  white.  In  contrast  with 
this  is  the  following  sweeping  definition  laid  down  in  the 
Tennessee  statute :  "  All  Negroes,  Mulattoes,  Mestizoes,25 
and  their  descendants,  having  any  African  blood  in  their 
veins,  shall  be  known  in  this  State  as  '  Persons  of  Col- 
or/ " 28  Arkansas  also,  in  its  statute  separating  the  races 
in  trains,  includes  among  persons  of  color  all  who  have 
"  a  visible  and  distinct  admixture  of  African  blood."  27 

In  everyday  language,  a  mulatto  is  any  person  having 
both  Caucasian  and  Negro  blood.  But  several  States  have 
defined  "  mulatto  "  specifically.  The  Supreme  Court  of 
Alabama 2S  held,  in  1850,  that  a  mulatto  is  the  offspring  of 
a  Negro  and  a  white  person,  that  the  offspring  of  a  white 
person  and  a  mulatto  is  not  a  mulatto;  but  this  definition 
was  enlarged  in  1867  29  to  include  anyone  descended  from 
Negro  ancestors  to  the  third  generation  inclusive,  though 
one  ancestor  in  each  generation  be  white.  It  has  been 
seen  already  that  this  was  recently  extended  to  the  fifth 
generation.  The  law  of  Missouri 30  defines  a  mulatto 
thus :  "  Every  person  other  than  a  Negro,  any  one  of 
whose  grandfathers  or  grandmothers  is  or  shall  have  been 
a  Negro,  although  his  or  her  other  progenitors,  except 

16 


LEGAL    DEFINITION    OF    NEGRO 

those  descending  from  the  Negro,  may  have  been  white 
persons,  shall  be  deemed  a  mulatto,  and  every  such  per- 
son who  shall  have  one-fourth  or  more  Negro  blood  shall 
in  like  manner  be  deemed  a  mulatto." 

Some  States  have  allowed  facts  other  than  physical 
characteristics  to  be  presumptive  of  race.  Thus,  it  has 
been  held  in  North  Carolina  31  that,  if  one  was  a  slave  in 
1865,  it  is  to  be  presumed  that  he  was  a  Negro.  The  fact 
that  one  usually  associates  with  Negroes  has  been  held 
in  the  same  State  proper  evidence  to  go  to  the  jury  tend- 
ing to  show  that  he  is  a  Negro.32  If  a  woman's  first 
husband  was  a  white  man,  that  fact,  in  Texas,33  is  ad- 
missible evidence  tending  to  show  that  she  is  a  white 
woman. 

One  may  ascertain  how  some  of  the  States  define  the 
other  races  from  their  laws  against  miscegenation.  Thus, 
Mississippi,  in  prohibiting  intermarriage  between  Cauca- 
sians and  Mongolians,  includes  one  having  as  much  as 
one-eighth  Mongolian  blood.  Oregon  makes  its  similar  law 
applicable  to  those  having  one-fourth  or  more  Chinese  or 
Kanakan 34  blood,  or  more  than  one-half  Indian  blood. 
Thus,  three-eighths  of  Indian  blood  would  not  be  suffi- 
cient to  bar  a  man  from  intermarriage  with  a  Caucasian, 
but  one-fourth  Negro,  Chinese,  or  Kanakan  blood  would. 

The  above  are  the  laws  which  define  the  races.  The 
interpretation  of  them  is  a  different  question.  Some 
statutes  say  that  one  is  a  person  of  color — in  effect,  a  Ne- 
gro— if  he  is  descended  from  a  Negro  to  the  third  gener- 
ation inclusive,  though  one  ancestor  in  each  generation 
may  have  been  white;  others  define  as  a  person  of  color 
a  man  who  has  as  much  as  one-eighth  Negro  blood;  and 
3  17 


WHAT    IS    A    NEGRO? 

still  others,  one  who  has  as  much  as  one-fourth  Negro 
blood. 

The   following   diagram    will   probably   clarify   these 
definitions : 


G.G.P.    G.G.M.  G.G.F.  G.G.M.  G.G.F.  G.G.M.  G.G.P.  G.G.M. 
Ill        A  B  C  D  E  F  G  H 


II 


Suppose  it  is  desired  to  ascertain  whether  the  son  X 
is  a  white  person  or  a  Negro.  The  first  generation  above 
him  is  that  of  his  parents,  M  and  N.  If  either  of  them  is 
white  and  the  other  a  Negro,  X*  has  one-half  Negro  blood 
and  would  be  considered  a  Negro  everywhere.  The  sec- 
ond generation  is  that  of  his  grandparents,  I,  J,  K,  and  L. 
If  any  one  of  them  is  a  Negro  and  the  other  three  white, 
X  has  one-fourth  Negro  blood,  and  would  be  considered  a 
Negro  in  every  State  except  possibly  Ohio.  The  third 
generation  is  that  of  his  great-grandparents,  A,  B,  C,  D, 
E,  F,  G,  and  H.  If  any  one  of  these  eight  great-grand- 
parents is  a  Negro,  X  has  one-eighth  Negro  blood  and 
would  be  considered  a  Negro  in  every  State  which  defines 

18 


LEGAL    DEFINITION    OF    NEGRO 

a  person  of  color  as  one  who  has  one-eighth  Negro  blood 
or  is  descended  from  a  Negro  to  the  third  generation  in- 
clusive. Suppose,  for  instance,  the  great-grandfather  A 
was  a  Negro  and  all  the  rest  of  the  great-grandparents 
were  white.  The  grandfather  I  would  be  half  Negro;  the 
father  M  would  be  one-fourth  Negro;  and  X  would  be 
one-eighth  Negro.  Thus,  though  of  the  fourteen  progen- 
itors of  X  only  three  had  Negro  blood,  X  would  neverthe- 
less be  considered  a  Negro. 

In  the  above  illustrations  only  one  of  the  progenitors 
has  been  a  Negro  and  his  blood  has  been  the  only  Negro 
blood  introduced  into  the  line.  Suppose,  however,  that 
there  is  Negro  blood  in  both  branches  of  the  family,  as 
where  a  mulatto  marries  a  mulatto  or  a  mulatto  marries 
a  Negro.  One  with  a  mathematical  turn  of  mind  may 
take  these  three  generations  and  work  out  the  various 
other  combinations  which  would  give  X  one-half,  one- 
fourth,  one-eighth,  or  any  other  fraction  of  Negro  blood. 

It  is  safe  to  say  that  in  practice  one  is  a  Negro  or  is 
classed  with  that  race  if  he  has  the  least  visible  trace  of 
Negro  blood  in  his  veins,  or  even  if  it  is  known  that  there 
was  Negro  blood  in  any  one  of  his  progenitors.  Misce- 
genation has  never  been  a  bridge  upon  which  one  might 
cross  from  the  Negro  race  to  the  Caucasian,  though  it  has 
been  a  thoroughfare  from  the  Caucasian  to  the  Negro. 
Judges  and  legislators  have  gone  the  length  of  saying  that 
one  drop  of  Negro  blood  makes  a  man  a  Negro,  but  to  be 
a  Caucasian  one  must  be  all  Caucasian.  This  shows  very 
clearly  that  they  have  not  considered  Negro  blood  on  a 
par  with  Caucasian;  else,  race  affiliation  would  be  deter- 
mined by  predominance  of  blood.  By  the  latter  test,  if 

19 


WHAT    IS    A   NEGRO? 

one  had  more  Negro  blood  than  white,  he  would  be  con- 
sidered a  Negro;  if  more  white  than  Negro,  a  Caucasian. 
Therefore,  at  the  very  threshold  of  this  subject,  even  in 
the  definitions  of  terms,  one  discovers  a  race  distinction. 
Whether  it  is  a  discrimination  depends  upon  what  one 
considers  the  relative  desirability  of  Caucasian  and  Negro 
ancestry. 

PEOPER    NAME   FOR   BLACK   MEN   IN    AMERICA 

Having  considered  how  the  law  defines  that  hetero- 
geneous group  of  people  called  Negroes,  one  is  brought 
face  to  face  with  the  question:  What,  in  actual  practice, 
is  the  proper  name  for  the  black  man  in  America?  Is  it 
"  Negro  ?  "  Is  it  "  colored  person  ?  "  Is  it  "  Afro- Ameri- 
can ?  "  If  not  one  of  these,  what  is  it  ?  Among  the  mem- 
bers of  that  group,  the  matter  of  nomenclature  is  of  more 
than  academic  interest.  Thus,  Rev.  J.  W.  E.  Bowen, 
Professor  of  Historical  Theology  at  Gamman  Seminary, 
Atlanta,  and  editor  of  The  Voice  of  the  Negro,  in  1906, 
published  an  article  in  that  paper  with  the  pertinent  title, 
"Who  are  We?" 

The  ways  of  speaking  of  members  of  the  Negro  race 
are  various.  In  the  laws,  as  has  been  shown,  they  are 
called  "Negroes,"  "Persons  of  Color,"  "Colored  Per- 
sons," "  Africans,"  and  "  Persons  of  African  Descent  " — 
more  often  "  Persons  of  Color."  By  those  who  would 
speak  dispassionately  and  scientifically  they  are  called  Ne- 
groes and  Afro-Americans.  Those  who  are  anxious  not 
to  wound  the  feelings  of  that  race  speak  of  them  as  "  Col- 
ored People  "  or  "  Darkies  " ;  while  those  who  would  speak 
contemptuously  of  them  say  "  Nigger  "  or  "  Coon."  "  Nig- 

20 


PROPER   NAME    FOR    BLACK   MEN    IN    AMERICA 

ger "  is  confined  largely  to  the  South ;  "  Coon/'  to  the 
rest  of  the  country.  Again,  one  occasionally  finds 
"  Blacks "  and  "  Black  Men "  in  contradistinction  to 
"  Whites  "  and  "  White  Men." 

The  question  of  the  proper  name  for  persons  of  Afri- 
can descent  was  brought  into  prominence  in  1906.  In 
that  year  a  bill  was  laid  before  Congress  relative  to  the 
schools  of  the  City  of  Washington,  which  provided  that 
the  Board  of  Education  should  consist  of  nine  persons, 
three  of  whom  should  be  "  of  the  colored  race."  Kepre- 
sentative  Thetus  W.  Sims,  of  Tennessee,  objected  to  the 
phrase  on  the  ground  that  it  would  include  "  Indians, 
Chinese,  Japanese,  Malays,  Sandwich  Islanders,  or  any 
persons  of  the  colored  race,"  and  insisted  that  "  Negroes  " 
or  "  persons  of  the  Negro  race  "  should  be  substituted  in 
its  place.  He  wrote  to  Dr.  Booker  T.  Washington,  as  one 
of  the  leaders  of  the  Negro  race,  asking  his  views  as  to 
the  proper  word.  The  following  is  part  of  his  reply: 
"...  It  has  been  my  custom  to  write  and  speak  of  the 
members  of  my  race  as  Negroes,  and  when  using  the  term 
'  Negro '  as  a  race  designation  to  employ  the  capital  '  N.' 
To  the  majority  of  the  people  among  whom  we  live  I 
believe  this  is  customary  and  what  is  termed  in  the  rhetor- 
ics 'good  usage.'  .  .  .  Sightly  or  wrongly,  all  classes 
have  called  us  Negroes.  We  cannot  escape  that  if  we 
would.  To  cast  it  off  would  be  to  separate  us,  to  a  certain 
extent,  from  our  history,  and  deprive  us  of  much  of  the 
inspiration  we  now  have  to  struggle  on  and  upward.  It 
is  to  our  credit,  not  to  our  shame,  that  we  have  risen  so 
rapidly,  more  rapidly  than  most  other  peoples,  from  sav- 
age ancestors  through  slavery  to  civilization.  For  my 

21 


WHAT    IS    A    NEGRO? 

part,  I  believe  the  memory  of  these  facts  should  be  pre- 
served in  our  name  and  traditions  as  it  is  preserved  in  the 
color  of  our  faces.  I  do  not  think  my  people  should  be 
ashamed  of  their  history,  nor  of  any  name  that  people 
choose  in  good  faith  to  give  them."  35 

Representative  Sims's  objection  to  the  phrase  "  of  the 
colored  race "  precipitated  a  discussion  throughout  the 
country.  The  New  York  Tribune  36  made  a  canvass  of  a 
great  many  prominent  Negroes  and  white  persons  to  as- 
certain what  they  thought  the  Negro  should  be  called. 
The  result  of  its  inquiry  is  this:  An  average  of  eleven 
Negroes  out  of  twenty  desired  to  be  spoken  of  as  Negroes. 
The  other  nine  spurned  the  word  as  "  insulting,"  "  con- 
temptuous," "  degrading,"  "  vulgar."  Two  argued  for 
"  Afro- American,"  two  for  "  Negro- American,"  one  for 
"black  man,"  and  one  was  indifferent  so  long  as  he  was 
not  called  "  Nigger."  Of  the  white  men  interviewed,  ten 
out  of  thirteen,  on  an  average,  preferred  the  word  "  Ne- 
gro." The  Negroes  made  a  specially  strong  plea  for  cap- 
italizing the  word  "  Negro,"  saying  that  it  was  not  fair 
to  accord  that  distinction  to  their  dwarfish  cousins,  the 
Negritos  in  the  Philippines,  and  to  the  many  savage 
tribes  in  Africa  and  deny  it  to  the  black  man  in  America. 
They  were  also  strongly  opposed  to  the  word  "  Negress  " 
as  applied  to  the  women  of  their  race.  This,  they  asserted, 
is  objectionable  because  of  its  historical  significance.  For 
in  times  of  slavery,  "  Negress  "  was  the  term  applied  to 
to  a  woman  slave  at  an  auction,  in  contradistinction  to 
"  buck,"  which  referred  to  a  male  slave. 

E.  A.  Johnson,  Professor  of  Law  in  Shaw  University, 
North  Carolina,  said :  "  The  term  '  Afro- American  '  is 

22 


PROPER  NAME  FOR  BLACK  MEN  IN  AMERICA 

suggestive  of  an  attempt  to  disclaim  as  far  as  possible 
our  Negro  descent,  and  casts  a  slur  upon  it.  It  fosters  the 
idea  of  the  inferiority  of  the  race,  which  is  an  incorrect 
notion  to  instill  into  the  Negro  youth,  whom  we  are  try- 
ing to  imbue  with  self-esteem  and  self-respect." 

Eev.  J.  W.  E.  Bowen,  to  whom  reference  has  already 
been  made,  said :  "  Let  the  Negroes,  instead  of  bemourning 
their  lot  and  fretting  because  they  are  Negroes  and  trying 
to  escape  themselves,  rise  up  and  wipe  away  the  stain 
from  this  word  by  glorious  and  resplendent  achievements. 
Good  names  are  not  given;  they  are  made." 

Eev.  H.  H.  Proctor,  pastor  of  the  First  Congrega- 
tional Church,  Atlanta,  said :  "  What  is  needed  is  not  to 
change  the  name  of  the  people,  but  the  people  of  the  name. 
Make  the  term  so  honorable  that  men  will  consider  it  an 
honor  to  be  called  a  Negro." 

Eev.  Walter  H.  Brooks,  pastor  of  the  Nineteenth 
Street  Baptist  Church,  Washington,  wrote :  "  The  black 
people  of  America  have  but  to  augment  their  efforts  in 
lives  of  self-elevation  and  culture,  and  men  will  cease  to 
reproach  us  by  any  name  whatever." 

Finally,  Charles  W.  Anderson,  Collector  of  Internal 
Eevenue,  New  York,  said :  "  I  am,  therefore,  inclined  to 
favor  the  use  of  '  Negro,'  partly  because  to  drop  it  would 
expose  me  to  the  charge  of  being  ashamed  of  my  race  (and 
I  hate  any  man  who  is  ashamed  of  the  race  from  which 
he  sprung),  and  partly  because  I  know  that  no  name  or 
term  can  confer  or  withhold  relative  rank  in  this  life.  All 
races  and  men  must  win  equality  of  rating  and  status  for 
themselves." 

One  is  safe  in  concluding  that  the  word  "  Negro " 
23 


WHAT   IS    A   NEGRO? 

(with  the  capital  "  N  ")  will  eventually  be  applied  to  the 
black  man  in  America.  White  people  are  distinctly  in 
favor  of  it:  what  Negroes  now  object  to  it  do  so  because 
of  its  corrupt  form,  "  Nigger."  As  the  Negro  shows  his 
ability  to  develop  into  a  respectable  and  useful  citizen,  con- 
temptuous epithets  will  be  dropped  by  all  save  the  thought- 
less and  vicious,  and  "  Negro  "  will  be  recognized  as  the 
race  name. 

NOTES 

1  "  Following  the  Colour  Line,"  p.  151. 

2  Ibid.,  p.  151. 

3  "  Up  From  Slavery,"  p.  2. 
*  Art.  XIII,  sec.  11. 

5  Code,  1867,  p.  94;  Code,  1876,  p.  187,  sec.  2;  Code,  1886, 
I,  p.  56,  sec.  2;  Code,  1896,  I,  p.  112,  sec.  2. 

6  Laws  of  Ky.,  1865-66,  p.  37. 

7  Pub.  Gen.  Laws  of  Md.,  I,  art.  27,  sec.  305,  p.  878. 

8  Laws  of  Miss.,  1865,  p.  82. 

9  Pell's  Revisal  of  1908,  II,  sec.  3369. 

10  Code,  1884,  sec.  3291. 

11  Laws  of  Tex.,  special  session,  1884,  p.  40. 

12  Code,  1907,  I,  p.  218,  sec.  2. 

13  Laws  of  Fla.,  1865,  p.  30;  Code,  1892,  pp.  Ill  and  681; 
Gen.  Stat,  1906,  p.  165,  sec.  1. 

14  Laws  of  Ga.,  1865-66,  p.  239. 

15  Annotated  Stat.,  1908,  III,  sec.  8360. 

16  Annotated  Stat,  1906,  II,  sec.  2174. 

17  Laws  of  S.  C.,  1864-65,  p.  271. 

18  Compiled  Stat.,  1895,  sec.  3644. 

19  Bellinger  and  Cotton's  Code  and  Stat,  II,  sec.  5217. 

20  Laws  of  Va.,  1865-66,  p.  84. 

24 


NOTES 

21  McPherson's  Case,  1877,  28  Grat.  939. 

22  People  v.  Dean,  1866,  14  Mich.  406. 

23  Walker  v.  Brockway,  1869,  I  Mich.  N.  P.  (Brown)  57. 

24  Monroe  v.  Collins,  1867,  17  O.  S.  665. 

25  A  mestizo  is  a  person  of  mixed  blood,  specially  a  person 
of  mixed  Spanish  and  American  Indian  parentage. — Cen- 
tury Dictionary,  V,  p.  3728. 

26  Laws  of  Tenn.,  1865-66,  p.  63. 

27  Kirby's  Digest,  1904,  sec.  6632,  p.  1378. 

28  Thurman  v.  State,  1850,  18  Ala.  276. 

29  Code,  1867,  p.  94. 

30  Laws  of  Mo.,  1864,  p.  67. 

31  McMillan  v.  School  Com.,  1890,  12  S.  E.  330;  107  N. 
C.  609. 

32  Hopkins  v.  Bowers,  1892,  16  S.  E.  1 ;  111  N.  C.  175. 

33  Bell  v.  State,  1894,  33  Tex.  Cr.  K.  163. 

34  A  Kanakan  is  a  Hawaiian  or  Sandwich  Islander. — Cen- 
tury Dictionary,  IV,  p.  3264. 

35  The  Norfolk,  Va.,  Landmark,  June  13,  1906. 

36  The  New  York  Daily   Tribune,   June  10,   1906,  part 
IV,  p.  2. 


CHAPTER    III 
DEFAMATION   TO    CALL   A   WHITE   PERSON   A   NEGRO 

THERE  are  certain  words  which  are  so  universally  con- 
sidered injurious  to  a  person  in  his  social  or  business  rela- 
tions if  spoken  of  him  that  the  courts  have  held  that  the 
speaker  of  such  words  is  liable  to  an  action  for  slander, 
and  damages  are  recoverable  even  though  the  one  of  whom 
the  words  were  spoken  does  not  prove  that  he  suffered  any 
special  damage  from  the  words  having  been  spoken  of 
him.  The  speaking  of  such  words  is  said  to  be  actionable 
per  se.  In  short,  all  the  world  knows  that  it  is  injurious 
to  a  man  to  speak  such  words  of  him,  and  the  court  does 
not  require  proof  of  facts  which  all  the  world  knows. 
Such  words  are  (1)  those  imputing  an  infamous  crime; 
(2)  those  disparaging  to  a  person  in  his  trade,  business, 
office,  or  profession;  and  (3)  those  imputing  a  loathsome 
disease.  Thus,  to  say  that  a  man  is  a  murderer  is  to 
impute  to  him  an  infamous  crime,  and  if  he  brings  a  suit 
for  slander,  it  is  not  necessary  for  him  to  prove  that  he 
has  been  damaged  by  the  statement.  The  result  is  the 
same  if  one  says  that  a  person  will  not  pay  his  debts,  be- 
cause that  injures  him  in  his  profession  or  business;  or 
that  a  man  has  the  leprosy,  because  that  is  imputing  to 
him  a  loathsome  disease. 

From  early  times,  it  has  been  held  to  be  slander,  action- 
26 


DEFAMATION   TO   CALL   A   WHITE   PERSON   A   NEGRO 

able  per  se,  to  say  of  a  white  man  that  he  is  a  Negro  or 
akin  to  a  Negro.  The  courts  have  placed  this  under  the 
second  class — that  is,  words  disparaging  to  a  person  in  his 
trade,  business,  or  profession.  The  first  case  in  point 
arose  in  South  Carolina1  in  1791,  when  the  courts  held 
that,  if  the  words  were  true,  the  party  (the  white  person) 
would  be  deprived  of  all  civil  rights,  and  moreover,  would 
be  liable  to  be  tried  in  all  cases,  under  the  "  Negro  Act," 
without  the  privilege  of  a  trial  by  jury,  and  that  "  any 
words,  therefore,  which  tended  to  subject  a  citizen  to  such 
disabilities,  were  actionable."  In  1818,  it  was  held  action- 
able by  a  court  of  the  same  State  to  call  a  white  man's 
wife  a  mulatto.2  But  an  Ohio  3  court,  the  same  year,  held 
that  it  was  not  slander,  actionable  per  se,  to  charge  a  white 
man  with  being  akin  to  a  Negro  inasmuch  as  it  did  not 
charge  any  crime  or  exclude  one  from  society.  The  only 
explanation,  apparently,  of  this  conflict  between  the  decis- 
ions of  South  Carolina  and  Ohio  is  that  in  the  latter  State 
it  was  not  considered  as  much  an  insult  to  impute  Negro 
blood  to  a  white  man  as  in  the  former.  In  North  Carolina,4 
in  1860,  there  was  the  surprising  decision  that  it  was  not 
actionable  per  se  to  call  a  white  man  a  free  Negro,  even 
though  the  white  man  was  a  minister  of  the  gospel. 

The  Supreme  Court  of  Louisiana,5  in  1888,  said :  "  Un- 
der the  social  habits,  customs,  and  prejudices  prevailing 
in  Louisiana,  it  cannot  be  disputed  that  charging  a  white 
man  with  being  a  Negro  is  calculated  to  inflict  injury 
and  damage.  .  .  .  No  one  could  make  such  a  charge, 
knowing  it  to  be  false,  without  understanding  that  its 
effect  would  be  injurious  and  without  intending  to  injure." 

In  1900,  a  Reverend  Mr.  Upton  delivered  a  temperance 
27 


address  near  New  Orleans.  The -reporters,  desiring  to  be 
complimentary,  referred  to  him  as  a  "  cultured  gentle- 
man." In  the  transmission  of  the  dispatch  by  wire  to 
the  New  Orleans  paper,  the  phrase  was,  by  mistake, 
changed  to  "  colored  gentleman."  The  Times-Democrat 
of  that  city,  unwilling  to  refer  to  a  member  of  the  Negro 
race  as  a  "  colored  gentleman,"  changed  it  to  "  Negro," 
and  that  was  the  word  finally  printed  in  the  report.  As 
soon  as  he  learned  of  the  mistake,  the  editor  of  the  paper 
duly  retracted  and  apologized.  But  Mr.  Upton,  not  ap- 
peased, brought  a  suit  for  libel  and  recovered  fifty  dollars 
damages.6 

The  News  and  Courier,  of  Charleston,  South  Caro- 
lina, in  1905,  in  reporting  a  suit  by  A.  M.  Flood  against 
a  street  car  company,  referred  to  Mr.  Flood  as  "  colored." 
The  latter  brought  suit  against  the  newspaper  and  re- 
covered damages.  In  the  course  of  its  opinion,  the  court 
said :  "  When  we  think  of  the  radical  distinction  subsist- 
ing between  the  white  man  and  the  black  man,  it  must  be 
apparent  that  to  impute  the  condition  of  the  Negro  to  a 
white  man  would  affect  his  [the  white  man's]  social  status, 
and,  in  case  anyone  publish  a  white  man  to  be  a  Negro, 
it  would  not  only  be  galling  to  his  pride,  but  would  tend 
to  interfere  seriously  with  the  social  relation  of  the  white 
man  with  his  fellow  white  men;  and,  to  protect  the  white 
man  from  such  a  publication,  it  is  necessary  to  bring  such 
charge  to  an  issue  quickly."  7  The  court  adds  that  its  de- 
cision does  not  violate  the  Amendments  to  the  Federal 
Constitution,  for  these  do  not  refer  to  the  social  condition 
of  the  two  races,  but  serve  rather  to  give  the  two  races 
equal  civil  and  political  rights.  Finally,  the  court  says, 

28 


DEFAMATION   TO   CALL   A   WHITE   PERSON   A   NEGRO 

quoting  People  v.  Gallagher :  "  .  .  .if  one  race  be  inferior 
to  the  other  socially,  the  Constitution  of  the  United  States 
cannot  put  them  on  the  same  plane." 

Where  laws  separating  the  races  in  railroad  trains  and 
street  cars  are  in  force,  and  the  duty  devolves  upon  the 
conductors  to  assign  passengers  of  the  two  races  to  their 
respective  coaches  or  compartments,  it  is  surprising  that 
they  do  not  more  often  make  the  mistakes  of  assigning 
bright  mulattoes  to  the  white  coach  and  dark-skinned 
white  persons  to  the  colored.  There  are  several  instances 
where  the  latter  mistake  has  been  made.  One  would  not 
expect  a  mulatto  to  resent  being  assigned  to  the  white 
coach  and  nothing  would  come  of  it,  unless  some  white 
passenger  recognized  him  as  being  a  Negro  and  objected; 
but  one  would  expect  a  white  person  to  resent  being  as- 
signed to  the  "  Jim  Crow  "  compartment. 

In  Atlanta,  in  1904,  a  certain  Mr.  Wolfe  and  his  sis- 
ter boarded  a  street  car  and  took  seats  in  the  part  of  the 
car  reserved  for  white  passengers.  The  conductor  asked 
them  to  move  back,  and  when  they  asked  the  reason,  he 
answered  that  the  rear  of  the  car  was  for  colored  pas- 
sengers. The  lady  asked  if  he  thought  they  were  colored, 
to  which  he  replied :  "  Haven't  I  seen  you  in  colored  com- 
pany ? "  Mr.  Wolfe  demanded  an  apology,  and  later 
brought  suit  against  the  company.  The  court  held  that 
the  street  car  company  was  liable,  and  that  the  good  faith 
of  the  conductor  in  honestly  thinking  that  they  were  Ne- 
groes would  serve  only  in  mitigation  of  damages.  Two 
judges  were  of  opinion  that  the  company  would  not  be 
liable  if  the  conductor  used  "  extreme  care  and  caution  " 
to  ascertain  the  race  of  the  passengers.  The  court  held 

29 


DEFAMATION   TU   CALL    A   WHITE    PERSON   A   NEGRO 

that  it  would  take  judicial  notice  of  the  social  status  of 
the  two  races  and  of  their  respective  superiority  and  in- 
feriority, saying :  "  The  question  has  never  heretofore  been 
directly  raised  in  this  State  as  to  whether  it  is  an  insult 
to  seriously  call  a  white  man  a  Negro  or  to  intimate  that 
a  person  apparently  white  is  of  African  descent.  We  have 
no  hesitation,  however,  after  the  most  mature  considera- 
tion of  every  phase  of  the  question,  in  declaring  our  de- 
liberate judgment  to  be  that  the  wilful  assertion  or  in-. 

timation  embodied  in  the  declaration  now  before  us  con- 

% 

stitutes  an  actionable  wrong.  We  cannot  shut  our  eyes 
to  the  facts  of  which  courts  are  bound  to  take  judicial 
notice.  Certainly  every  court  is  presumed  to  know  the 
habits  of  the  people  among  which  it  is  held,  and  their 
characteristics,  as  well  as  to  know  leading  historical  events 
and  the  law  of  the  land.  To  recognize  inequality  as  to  the 
civil  or  political  rights  belonging  to  any  citizen  or  class 
of  citizens,  or  to  attempt  to  fix  the  social  status  of  any 
citizen  either  by  legislation  or  judicial  decision,  is  repug- 
nant to  every  principle  underlying  our  republican  form  of 
government.  Nothing  is  further  from  our  purpose.  Un- 
der our  institutions  '  every  man  is  the  architect  of  his  own 
fortune.'  Every  citizen,  white  and  black,  may  gain,  in 
every  field  of  endeavor,  the  recognition  his  associates  may 
award.  That  is  his  right,  and  his  own  concern.  But  the 
courts  can  take  notice  of  the  architecture  without  inter- 
meddling with  the  building  of  the  structure.  It  is  a  mat- 
ter of  common  knowledge  that,  viewed  from  a  social  stand- 
point, the  Negro  race  is  in  mind  and  morals  inferior  to 
the  Caucasian.  The  record  of  each  from  the  dawn  of 
historic  times  denies  equality.  The  fact  was  recognized 

30 


DEFAMATION   TO   CALL   A   WHITE   PERSON   A   NEGRO 

by  two  of  the  leaders  on  opposite  sides  of  the  question  of 
slavery,  Abraham  Lincoln  and  A.  H.  Stephens."  9 

The  following  is  a  recent  case  arising  in  Kentucky,  in 
which  it  was  held  that  it  is  not  slander  per  se  to  call  a 
white  person  a  Negro:  A  white  woman  entered  a  coach 
set  apart  for  white  people.  The  passengers  therein  com- 
plained that  she  was  a  Negro,  and  the  brakeman,  on  hear- 
ing their  remarks,  asked  her  to  go  into  the  next  coach. 
When,  upon  reaching  the  other  coach,  she  found  that  it 
was  set  apart  for  Negroes,  she  left  the  train,  which  had 
not  yet  started  from  the  station.  She  met  the  conductor, 
who,  upon  hearing  her  explanation,  permitted  her  to  go 
her  journey  in  the  white  coach.  Later,  she  brought  suit 
against  the  railroad  company  and  recovered  a  judgment 
for  four  thousand  dollars.  Upon  appeal,  the  judgment 
of  the  lower  court  was  reversed,  the  higher  court  saying: 
"What  race  a  person  belongs  to  cannot  always  be  deter- 
mined infallibly  from  appearances,  and  mistake  must  in- 
evitably be  made.  When  a  mistake  is  made,  the  carrier 
is  not  liable  in  damages  simply  because  a  white  person 
was  taken  for  a  Negro,  or  vice  versa.  It  is  not  a  legal 
injury  for  a  white  person  to  be  taken  for  a  Negro.  It 
was  not  contemplated  by  the  statute  that  the  carrier  should 
be  an  insurer  as  to  the  race  of  its  passengers.  The  car- 
rier is  bound  to  exercise  ordinary  care  in  the  matter,  but 
if  it  exercises  ordinary  care,  and  is  not  insulting  to  the 
passenger,  it  is  not  liable  for  damages."  10 

Probably  the  most  recent  case  on  the  subject  is  one 
which  arose  about  two  years  ago  in  Virginia.  A  certain 
Mrs.  Stone  boarded  a  train  at  Myrtle,  Virginia.  In  spite 
of  her  protests,  the  conductor  compelled  her  to  go  into 

31 


DEFAMATION   TO    CALL   A   WHITE    PERSON   A   NEGRO 

the  "  Jim  Crow  "  coach,  thinking  that  she  was  a  Negro. 
After  she  had  entered  the  car,  a  Negro  passenger  recog- 
nized her  and  said,  "Lor',  Miss  Rosa,  this  ain't  no  place 
for  you ;  you  b'long  in  the  cars  back  yonder."  Mrs.  Stone 
rode  on  to  Suffolk,  the  next  station,  and  left  the  train. 
She  sued  the  railroad  company  for  one  thousand  dollars 
damages.  It  appeared  that  Mrs.  Stone  was  much  tanned : 
this  probably  caused  the  conductor  to  mistake  her  for  a 
Negro. 

It  will  have  been  noticed  that  all  the  courts  which 
have  held  it  actionable  per  se  to  call  a  white  person  a  Ne- 
gro have  been  in  the  Southern  States.  It  is  doubtful 
whether  the  courts  in  other  sections  would  take  the  same 
view,  and  even  Kentucky,  a  Southern  State,  has  refused 
so  to  do.  The  attitude  of  the  court  depends  upon  whether 
it  is  the  consensus  of  opinion  among  the  people  of  the 
community  that  it  is  injurious  to  a  white  man  in  his  busi- 
ness and  social  relations  to  be  called  a  Negro. 

The  above  is  clearly  another  race  distinction.  Al- 
though there  are  many  decisions  to  the  effect  that  it  is 
actionable  per  se  to  call  a  white  person  a  Negro,  not  one 
can  be  found  deciding  whether  it  would  be  so  to  call  a 
Negro  a  white  person.  One  event  looks,  in  a  measure,  in 
this  direction.  The  city  of  Asheville,  North  Carolina,  in 
1906,  contracted  with  a  printer  to  have  a  new  city  direc- 
tory issued.  The  time-honored  custom  of  the  place  was 
to  distinguish  white  and  Negro  citizens  by  means  of  an 
asterisk  placed  before  the  names  of  all  Negroes.  After 
the  directory  had  been  distributed,  it  was  found  that  as- 
terisks had  been  placed  before  the  names  of  two  highly 
respected  white  citizens,  thus  indicating  that  they  were 

33 


NOTES 

of  Negro  lineage.  From  what  has  been  seen,  there  is  no 
doubt  that  this  would  found  an  action  for  libel.  The 
newspaper  report  says :  "  On  the  heels  of  this  suit  brought 
by  Mr.  Lancaster  [one  of  the  white  persons],  it  is  said 
that  Henry  Pearson  is  seriously  considering  bringing  suit 
against  the  same  people  because  an  asterisk  was  not ll 
placed  before  his  name.  Henry  is  a  Negro.  In  fact 
he  is  one  of  the  best-known  Negroes  in  Asheville.  He 
is  at  present  proprietor  of  the  Royal  Victoria,  a  Negro 
hotel,  and  complains  that  he  has  been  the  object  of  many 
unpleasant  jests  since  the  publication  of  the  directory, 
and  likewise  inquiries  as  to  just  '  when  he  turned  white/ 
Pearson  fears  that  if  the  report  goes  abroad  that  he  is 
a  white  man  it  will  damage  his  hotel,  and  that  the  Negroes 
who  make  his  place  headquarters  and  who  pay  into  Hen- 
ry's hands  many  shekels  will  cease  to  patronize  his  hotel, 
and  that  his  losses  will  be  grievous." 12  This  case  is 
unique;  whether  it  has  been  brought  to  court  is  as  yet 
unknown.  It  is  probable  that  to  sustain  his  action  it 
would  be  necessary  for  the  Negro  to  prove  special  dam- 
age to  his  business ;  whereas  Mr.  Lancaster  would  not  have 
to  allege  or  prove  any  damage  at  all.  But,  save  in  such 
a  case  as  the  above,  it  would  be  hard  to  imagine  a  cir- 
cumstance in  which  a  court  would  hold  that  it  is  injuri- 
ous to  a  Negro  in  his  trade,  business,  office,  profession,  or 
in  his  social  relations  to  be  called  a  white  man. 


NOTES 

1  Eden  v.  Legare,  1791,  1  Bays  (S.  C.)  171. 

2  Wood  v.  King,  1818,  1  Nott  &  McC.  (S.  C.)  184. 

4  33 


DEFAMATION   TO   CALL   A   WHITE   PERSON   A   NEGRO 

3  Barrett  v.  Jarvis,  1823,  1  O.  (1  Hammond)  84,  note. 

4  McDowell  v.  Bowles,  1860,  8  Jones  (N.  C.)  184. 

5  Spotarno  v.  Fourichon,  1888,  40  La.  Ami.  423. 

6  Upton  v.  Times-Democrat  Pub.  Co.,  1900,  28  So.  970. 

7  Flood  v.  News  and  Courier  Co.,  1905,  50  S.  E.  63. 
8 93  N.  Y.  438  (1883). 

9  Wolfe  v.  Ey.  Co.,  1907,  58  S.  E.  899. 

10  So.  Ky.  Co.  v.  Thurman,  1906,  90  S.  W.  240;  28  Ky.  L. 
Rep.  699;  2  L.  R.  A.  (N.  S.)  1108. 

11  Italics  the  writer's. 

12  Raleigh,  N".  C.,  News  and  Observer,  July  25,  1906. 


CHAPTEE   IV 

THE    "BLACK   LAWS"    OF    1865-68 

ONE  set  of  race  distinctions  deserves  to  be  treated  by 
itself.  They  have  long  since  become  obsolete  and  were, 
during  their  existence,  in  a  sense,  anomalous ;  yet  they  are, 
perhaps,  the  most  illuminating  from  a  historical  point 
of  view  of  all  the  race  distinctions  in  the  law.  They 
were  the  result  of  the  statutes  that  were  enacted  by  the 
legislatures  of  the  Southern  States  between  1865  and  1868 
for  the  definition  and  establishment  of  the  status  of  the 
Negro.  The  War  closed  in  1865 ;  the  Fourteenth  Amend- 
ment to  the  Federal  Constitution  was  ratified  July  28, 
1868;  and  the  Reconstruction  regime  in  the  South  was  not 
under  way  till  1868  or  later.  Therefore,  during  the  in- 
terval between  the  close  of  the  War  and  the  ratification 
of  the  Fourteenth  Amendment  or  the  beginning  of  active 
Reconstruction,  the  Southern  States  were  free  to  adopt 
such  measures  as  they  saw  fit  to  establish  the  relation  be- 
tween the  races. 

The  legislatures  faced  a  new  problem,  or  rather  an  old 
problem  increased  many  fold  in  perplexity.  They  had  to 
establish  the  industrial,  legal,  and  political  status  of  4,- 
000,000  people  who  had  recently  been  slaves  and  were  now 
freemen.  It  must  be  remembered  that  when  the  Southern 
legislatures  convened  in  1865  their  actions  with  regard  to 

35 


THE    "BLACK   LAWS"    OF    1865-68 

the  Negro  were  not  beset  by  the  limitations  subsequently 
fixed  by  the  Federal  Government.  The  first  Civil  Eights 
Bill,  that  of  1866,  had  not  been  passed.  The  Southern 
States  were  at  liberty  to  enact  such  statutes  as  they 
thought  proper  and  to  draw  upon  their  own  experience  and 
that  of  the  free  States  with  regard  to  free  Negroes. 


"  BLACK   LAWS        OF    FREE    STATES 

These  statutes  of  1865-68  are  here  called  the  "  Black 
Laws."  This  term  was  first  applied  to  the  laws  of  the 
border  and  Northern  States  passed  before  and  up  to  the 
Civil  War  to  fix  the  position  of  free  persons  of  color.  It 
is  well  to  make  a  cursory  examination  of  these  laws  of  the 
free  States,  because  they  are  prototypes  of  many  of  the 
statutes  enacted  by  the  Southern  States  while  unhampered 
by  Federal  legislation.  All  the  States,  North  as  well  as 
South,  had  previously  faced  the  problem  of  the  free  Negro 
and  made  laws  concerning  him.  Naturally,  therefore,  the 
South,  now  that  all  its  Negroes  were  declared  free,  turned 
for  precedents  to  the  other  States  which  had  already  had 
experience  with  the  free  Negro. 

The  following  are  some  of  the  statutes  that  had  been 
enacted  with  regard  to  free  Negroes  by  States  lying  out- 
side of  what  was  later  the  Confederacy: 

Maryland,1  in  1846,  denied  Negroes,  slave  or  free,  the 
right  to  testify  in  cases  in  which  any  white  person  was 
concerned,  though  it  permitted  the  testimony  of  slaves 
against  free  Negroes.  The  Constitution  2  of  1851  forbade 
the  legislature  to  pass  any  law  abolishing  the  relation  of 
master  and  servant. 

36 


Delaware,3  in  1851,  prohibited  the  immigration  of  free 
Negroes  from  any  State  except  Maryland:  moreover,  it 
forbade  them  to  attend  camp  meetings,  except  for  religious 
worship  under  the  control  of  white  people,  or  political 
gatherings.  A  law  of  1852  provided  that  no  free  Negroes 
should  have  the  right  to  vote  or  "  to  enjoy  any  other  rights 
of  a  freeman  other  than  to  hold  property,  or  to  obtain 
redress  in  law  and  in  equity  for  any  injury  to  his  or  her 
person  or  property." 

Missouri,4  in  1847,  forbade  the  immigration  into  the 
State  of  any  free  Negro;  enacted  that  no  person  should 
keep  a  school  for  the  instruction  of  Negroes  in  reading 
and  writing;  forbade  any  religious  meetings  of  Negroes 
unless  a  justice  of  the  peace,  constable,  or  other  officer 
was  present ;  and  declared  that  schools  and  religious  meet- 
ings for  free  Negroes  were  "unlawful  assemblages." 

Ohio,  which  probably  had  the  most  notorious  "  Black 
Laws  "  of  any  free  State,  "  required  colored  people  to  give 
bonds  for  good  behavior  as  a  condition  of  residence,  ex- 
cluded them  from  the  schools,  denied  them  the  rights  of 
testifying  in  courts  of  justice  when  a  white  man  was  party 
on  either  side,  and  subjected  them  to  other  unjust  and  de- 
grading disabilities."  5 

Indiana,8  in  1851,  prohibited  free  Negroes  and  mulat- 
toes  from  coming  into  the  State,  and  fined  all  persons  who 
employed  or  encouraged  them  to  remain  in  the  State  be- 
tween ten  and  five  hundred  dollars  for  each  offense.7  The 
fines  were  to  be  devoted  to  a  fund  for  the  colonization  of 
Negroes.8  A  law,  which  was  submitted  to  a  special  vote 
and  passed  by  a  majority  of  ninety  thousand,  prohibited 
intermarriage  between  the  races,  provided  for  colonization 

37 


THE    "BLACK    LAWS"    OF    1865-68 

of  Negroes,  and  made  incompetent  the  testimony  of  per- 
sons having  one-eighth  or  more  Negro  blood.9 

Illinois,10  in  1853,  made  it  a  misdemeanor  for  a  Negro 
to  come  into  the  State  with  the  intention  of  residing  there, 
and  provided  that  persons  violating  this  law  should  be 
prosecuted  and  fined  or  sold  for  a  time  to  pay  the  fine.11 

Iowa,12  in  1851,  forbade  the  immigration  of  free  Ne- 
groes,13 and  provided  that  free  colored  persons  should  not 
give  testimony  in  cases  in  which  a  white  man  was  a  party. 

Oregon,1*  in  1849,  forbade  the  entrance  of  Negroes  as 
settlers  or  inhabitants,  the  reason  being  that  it  would  be 
dangerous  to  have  them  associate  with  the  Indians  and 
incite  the  latter  to  hostility  against  white  people. 

This  sketch  of  the  "  Black  Laws  "  of  some  of  the  free 
States,  incomplete  as  it  is,  is  sufficient  to  show  how  those 
States  regarded  free  Negroes.  First,  they  tried  to  keep 
Negroes  out;  and,  secondly,  they  subjected  those  that  re- 
mained to  various  disabilities.  When  the  first  Civil  Rights 
Bill  was  before  Congress,  the  strongest  opposition  to  its 
passage  was  on  the  ground  that  it  would  compel  the  free 
States  to  repeal  these  "  Black  Laws  "  and  allow  Negroes 
to  intermarry  with  whites,  attend  the  same  schools,  sit 
on  juries,  vote,  bear  firearms,15  etc.  The  free  Negro  con- 
stituted a  distinct  class  between  the  slave  and  the  master, 
his  condition  being  more  nearly  that  of  a  slave. 

The  Southern  States  had  been  afraid  of  the  free  Ne- 
gro. He  was  a  sort  of  irresponsible  being,  neither  bond 
nor  free,  who  was  likely  to  spread  and  foster  discontent 
among  the  slaves.  When  a  slave  was  emancipated,  it  was 
desired  that  he  leave  the  State  forthwith.  Thus,  the  Vir- 
ginia Constitution 16  of  1850  provided  that  emancipated 

38 


"BLACK   LAWS"   OF   FREE   STATES 

slaves  who  remained  in  the  Commonwealth  more  than 
twelve  months  after  they  became  actually  free,  should  for- 
feit'their  freedom  and  be  reduced  to  slavery  under  such 
regulations  as  the  law  might  prescribe.  The  free  Negro 
was  truly  between  the  devil  and  the  deep  sea.  If  he  stayed 
in  the  State,  he  would  be  reenslaved ;  if  he  went  to  a  free 
State,  he  would  be  liable  to  prosecution  there  for  violat- 
ing the  laws  against  the  immigration  of  free  persons  of 
color. 

As  one  turns  to  the  first  laws  passed  by  the  Southern 
States  after  Emancipation,  he  should  keep  in  mind  that 
these  States  were  only  grappling  with  the  old  problem  of 
the  free  Negro,  now  on  a  much  larger  scale,  which  prob- 
lem the  free  States  had  disposed  of  already  in  the  manner 
just  seen.  As  yet,  the  Southern  States  had  no  conception 
of  the  Negro  as  a  citizen  with  inalienable  rights  to  be 
recognized  and  protected.  For  instance,  the  Constitution 
of  Mississippi 17  of  1832,  as  amended  August  1,  1865, 
abolished  slavery  and  empowered  the  legislature  to  make 
laws  for  the  protection  and  security  of  the  persons  and 
property  of  f  reedmen,  and  to  guard  "  them  and  the  State 
against  any  evils  that  may  arise  from  their  sudden  eman- 
cipation." And  the  laws  of  South  Carolina/8  of  the  same 
year,  provided  that,  "  although  such  persons  [Negroes] 
are  not  entitled  to  social  or  political  equality  with  white 
persons,"  they  might  hold  property,  make  contracts,  etc. 
except  as  hereinafter  modified. 


39 


THE    "BLACK   LAWS"    OF    1865-68 


RESTRICTIONS    UPON   MOVEMENT   OF    NEGROES 

After  1865  there  was  comparatively  little  legislation 
as  to  the  movement  of  Negroes  from  one  State  to  another. 
It  would  have  been  utterly  impossible  to  control  the  migra- 
tion of  the  4,000,000  Negroes  then  in  the  United  States. 
In  States  where  the  free  Negroes  were  numbered  by  only 
hundreds  or  even  thousands,  the  entrance  or  exit  of  one 
was  a  noticeable  event.  Where,  however,  Negroes  were 
in  the  majority,  a  hundred  might  have  come  or  gone  at 
once  without  being  noticed.  The  Constitution  of  Geor- 
gia 10  of  1865  empowered  the  general  assembly  to  make 
laws  for  the  regulation  or  prohibition  of  the  immigration 
of  free  persons  of  color  into  that  State  from  other  places; 
but  the  legislature  seems  not  to  have  used  this  power. 

Two  years  earlier,  in  1863,  the  legislature  of  Ken- 
tucky 20  had  declared  that  it  was  unlawful  for  any  Negro 
or  mulatto  claiming  to  be  free  under  the  Emancipation 
Proclamation  of  January  1,  1863,  or  under  any  other 
proclamation  by  the  Government  of  the  United  States, 
to  migrate  to  or  remain  in  the  State.  Any  Negro  violat- 
ing this  law  was  treated  as  a  runaway  slave. 

A  law  of  South  Carolina,21  of  1865,  provided  that  no 
person  of  color  should  migrate  to  or  reside  in  the  State 
unless,  within  twenty  days  after  his  arrival,  he  entered  into 
a  bond  with  two  freeholders  as  sureties  in  a  penalty  of 
one  thousand  dollars,  conditioned  on  his  good  behavior 
and  for  his  support  if  he  should  become  unable  to  support 
himself.  If  he  should  fail  to  execute  the  required  bond, 
he  had  to  leave  the  State  within  ten  days,  or  be  liable  to 
corporal  punishment.  If,  after  being  so  punished,  he 

40 


LIMITATIONS    IN   RESPECT   TO    OCCUPATIONS 

should  still  remain  in  the  State  fifteen  days  longer,  he  was 
to  be  transported  beyond  the  limits  of  the  State  for  life 
"  or  kept  at  hard  labor,  with  occasional  solitary  confine- 
ment, for  a  period  not  exceeding  five  years."  The  same 
punishment  of  banishment  for  life,  or  confinement  and 
hard  labor  for  a  term  was  prescribed  for  any  person  of 
color  coming  or  being  brought  into  South  Carolina  after 
having  been  convicted  of  an  infamous  crime  in  another 
State. 

That  the  Southern  States  believed  that  the  day  of  the 
Negro  as  a  laborer  was  over  was  evidenced,  not  only  by 
their  efforts  to  keep  Negroes  out  of  the  State,  but  also  by 
the  fact  that  so  many  of  them,  during  the  first  years  after 
the  War,  passed  statutes  encouraging  and  offering  induce- 
ments to  foreign  immigrants.  The  movement  to  bring 
foreigners  into  the  South  is  still  going  on,  but  it  has  never 
met  with  much  success. 

Although  to-day  many  places,  both  in  the  North  and 
in  the  South,  do  not  permit  Negroes  to  reside  within  their 
borders  or  even  to  stay  over  night,  the  above  are  apparently 
the  last  instances  where  attempts  to  limit  the  movement 
of  Negroes  22  have  been  made  by  State  legislatures.  Most 
of  the  States  have  concluded  to  allow  Negroes  to  come 
and  go  at  will,  but  to  fix  their  status  while  in  the  State. 


LIMITATIONS   UPON   NEGROES   IN   RESPECT   TO  OCCUPATIONS 

From  some  occupations  Negroes  were  wholly  excluded ; 
others,  they  were  permitted  to  engage  in,  only  after  obtain- 
ing licenses.  The  Alabama  Code  23  of  1867  provided  that 
no  free  Negro  should  be  licensed  to  keep  a  tavern  or  to 

41 


THE    "BLACK   LAWS"    OF    1865-68 

sell  vinous  or  spirituous  liquors.  There  had  been  a  statute 
of  the  same  State  which  declared  that  a  free  Negro  should 
not  be  employed  to  sell  or  to  assist  in  the  sale  of  drugs 
or  medicine,  under  a  penalty  of  one  hundred  dollars,  but 
this  had  been  repealed  in  1866.24 

la  South  Carolina,25  it  was  unlawful  for  a  Negro 
either  to  own  a  distillery  of  spirituous  liquors  or  any  es- 
tablishment where  they  were  sold.  The  violation  of  this 
law  was  a  misdemeanor  punishable  by  fine,  corporal  pun- 
ishment or  hard  labor.  The  law  of  this  State  26  went  still 
further  by  enacting  that  no  person  of  color  should  pursue 
or  practice  the  art,  trade,  or  business  of  an  artisan,  me- 
chanic, or  shopkeeper,  "  or  any  other  trade,  employment, 
or  business  (besides  that  of  husbandry,  or  that  of  a  serv- 
ant under  contract  for  service  or  labor)  on  his  own  ac- 
count and  for  his  own  benefit,  or  in  partnership  with  a 
white  person,  or  as  agent  or  servant  of  any  person  "  until  he 
should  have  obtained  a  license.  This  license  was  good  for 
one  year  only.  Before  granting  the  license  the  judge  had 
to  be  satisfied  of  the  skill,  fitness,  and  good  moral  char- 
acter of  the  applicant.  If  the  latter  wished  to  be  a  shop- 
keeper or  peddler,  the  annual  license  fee  was  one  hundred 
dollars;  if  a  mechanic,  artisan,  or  a  member  of  any  other 
trade,  ten  dollars.  The  judge  might  revoke  the  license 
upon  a  complaint  made  to  him.  Negroes  could  not  prac- 
tice any  mechanical  art  or  trade  without  showing  either 
that  they  had  served  their  term  of  apprenticeship  or  were 
then  practicing  the  art  or  trade.  For  violation  of  this  rule, 
the  Negro  had  to  pay  a  fine  of  double  the  amount  of  the 
license,  one-half  to  go  to  the  informer. 

In  some  States,  there  was  a  limitation  upon  the  right 
42 


SALE   OF    FIREARMS    AND   LIQUOR   TO   NEGROES 

of  Negroes  to  hold  land  as  tenants.  A  statute  of  Missis- 
sippi 27  in  1865  gave  them  the  right  to  sue  and  be  sued,  to 
hold  property,  etc.,  but  declared  that  the  provisions  of  the 
statute  should  not  be  construed  to  allow  any  freeman,  free 
Negro,  or  mulatto  to  rent  or  lease  any  lands,  except  in  in- 
corporated towns  or  cities  in  which  places  the  corporate 
authorities  should  control  the  same.  The  same  statute 
required  every  freeman,  free  Negro,  or  mulatto  to  have  on 
January  1,  1866,  and  annually  thereafter,  a  lawful  home 
and  employment  with  written  evidence  thereof.  If  living 
in  an  incorporated  town,  he  must  have  a  license  from  the 
mayor,  authorizing  him  to  do  irregular  job  work — that  is, 
if  he  was  not  under  some  written  contract  for  service;  if 
living  outside  such  a  town,  he  must  have  a  similar  license 
from  a  member  of  the  board  of  police  of  his  precinct. 

Tennessee,28  on  the  other  hand,  went  to  the  length  of  ex- 
pressly throwing  open  all  trades  to  Negroes  who  complied 
with  the  license  laws  which  were  applicable  to  whites  and 
blacks  alike. 


A  fruitful  subject  of  legislation  was  that  relative  to  the 
sale  of  firearms  to  Negroes.  On  January  15,  1866,  the 
legislature  of  Florida 29  enacted  a  law  declaring  that 
it  was  unlawful  for  a  Negro  to  own,  use,  or  keep  in  his 
possession  or  control  "  any  bowie-knife,  dirk,  sword,  fire- 
arms or  ammunition  of  any  kind  "  unless  he  had  obtained 
a  license  from  the  probate  judge  of  the  county.  To 
get  the  license,  he  had  to  present  the  certificate  of  two 
respectable  citizens  of  the  county  as  to  the  peaceful  and 

43 


THE    "BLACK   LAWS"    OF    1865-68 

orderly  character  of  the  applicant.  The  violation  of  this 
statute  was  a  misdemeanor  punishable  by  the  forfeiture  to 
the  use  of  the  informer  of  such  firearms  and  ammunition 
and  by  standing  in  a  pillory  one  hour  or  by  being  whipped 
not  over  thirty-nine  stripes. 

In  Mississippi 30  the  law  was  that  any  f  reedman,  free 
Negro,  or  mulatto,  not  in  the  military  service  of  the  United 
States  nor  having  a  specified  license,  who  should  keep  or 
carry  firearms  of  any  kind  or  any  ammunition,  dirk,  or 
bowie-knife  should  be  punished  by  a  fine  of  not  over  ten 
dollars,  and  all  such  arms,  etc.,  should  be  forfeited  to  the 
informer.  The  law  further  provided  that,  if  any  white 
person  lent  or  gave  a  f  reedman,  free  Negro,  or  mulatto  any 
firearms,  ammunition,  dirk,  or  bowie-knife,  such  white 
person  should  be  fined  not  over  fifty  dollars,  or  imprisoned 
not  over  thirty  days.  South  Carolina  31  did  allow  a  Negro 
who  was  the  owner  of  a  farm,  to  keep  a  "  shot-gun  or  rifle, 
such  as  is  ordinarily  used  in  hunting,  but  not  a  pistol,  mus- 
ket, or  other  firearm  or  weapon  appropriate  for  purposes 
of  war." 

It  has  been  seen  that  some  States  forbade  Negroes  to 
make  or  sell  intoxicating  liquor.  Others  went  a  step  fur- 
ther and  made  it  unlawful  to  sell  liquor  to  Negroes.  It 
is  worth  noting  that  one  of  the  early  acts  of  the  legislature 
of  Alabama 32  was  to  repeal  such  a  law.  But  Kentucky  33 
forbade  a  coffee-house  keeper  to  sell  liquor  to  free  Negroes 
under  penalty  of  a  bond  of  five  hundred  dollars.  Missis- 
sippi 3*  made  it  an  offence,  punishable  by  a  fine  of  not  over 
fifty  dollars  or  imprisonment  for  not  more  than  thirty  days, 
for  a  white  man  to  sell,  give,  or  lend  a  Negro  any  intoxi- 
cating liquors,  except  that  a  master,  mistress,  or  employer 

44 


SALE    OF    FIREARMS    AND    LIQUOR   TO    NEGROES 

might  give  him  spirituous  liquors,  but  not  in  quantities 
sufficient  to  produce  intoxication. 

These  laws  against  the  sale  of  firearms  and  liquor  to 
Negroes  probably  grew  out  of  a  fear  by  the  white  people 
of  a  Negro  uprising,  such  as  had  occurrred  during  slavery. 
The  South  was  in  such  a  turmoil  immediately  after  the 
War  that  stringent  precautionary  measures  were  consid- 
ered necessary.  These  statutes  have  analogies  in  the  pres- 
ent laws  of  the  Western  States  against  the  sale  of  firearms 
and  liquor  to  Indians.  The  law  of  Arizona 35  declares  that 
anyone  who  sells  or  gives  intoxicating  liquor  to  an  Indian 
is  guilty  of  a  misdemeanor,  and  shall  be  punished  by  a  fine 
of  between  one  hundred  and  three  hundred  dollars  or  im- 
prisoned between  one  and  six  months,  or  both.  The  sale 
or  gift  or  repair  of  firearms  was  added  in  1883.36  Idaho  37 
has  a  law  very  much  the  same,  making  the  fine,  however, 
not  over  five  hundred  dollars  or  the  term  of  imprisonment 
not  over  six  months,  or  both.  Dakota  Territory,38  in  1865, 
made  it  a  misdemeanor  to  sell  or  give  liquor  to  Indians. 
Nebraska,39  in  1881,  made  it  an  offence  punishable  by  a  fine 
of  fifty  dollars  to  sell  liquor  to  them,  and  in  1891  made  it 
a  felony  to  sell  or  give  liquor  to  any  Indian  not  a  citizen, 
attaching  a  fine  of  not  over  one  thousand  dollars  or  impris- 
onment in  the  penitentiary  between  two  and  five  years. 
New  Mexico  40  makes  the  punishment  a  fine  between  twenty 
and  one  hundred  dollars  or  imprisonment  not  over  three 
months.  Utah  41  makes  the  punishment  a  fine  between  ten 
and  one  hundred  dollars.  The  law  of  Oregon42  made  it 
lawful  for  every  white  male  citizen  of  the  age  of  sixteen 
to  keep  and  carry  certain  arms,  impliedly  denying  that 
right  to  other  races.  Washington 43  made  the  punishment 

45 


THE   "BLACK    LAWS"    OF    1865-68 

for  selling  or  giving  liquor  to  Indians  a  fine  of  between 
twenty-five  and  one  hundred  dollars.  As  late  as  1903  one 
finds  in  the  revised  statutes  of  Maine  **  a  provision  that 
one  who  sells  or  gives  to  an  Indian  intoxicating  liquors 
forfeits  not  less  than  five  nor  more  than  twenty  dollars, 
one-half  to  complainant.  It  must  be  clear  that  the  fore- 
going laws  were  not  passed  solely  for  the  moral  uplift  of 
the  Indian,  but  quite  as  much  as  a  protection  to  white 
people  from  drunken  Indians.  A  similar  motive  must  have 
actuated  the  Southern  States  in  enacting  the  laws  of  1865- 
1868,  and  it  has  been,  at  least,  one  incentive  for  the 
present  prohibition  legislation  in  the  South. 


LABOR  CONTRACTS  OF  NEGROES 

Another  common  form  of  legislation  with  regard  to  free 
Negroes  was  that  relative  to  their  contracts  for  personal 
service.  A  Florida45  statute  of  1865  required  that  all  con- 
tracts with  persons  of  color  should  be  in  writing  and  fully 
explained  to  them  before  two  credible  witnesses,  and  that 
one  copy  of  the  contract  should  be  kept  by  the  employer 
and  the  other  by  some  judicial  officer  of  the  State  and 
county  wherein  the  service  was  to  be  performed.  Contracts 
for  less  than  thirty  days  might  be  oral.  The  Xegro  who 
failed  to  perform  his  contract  by  wilful  disobedience  of  or- 
ders, wanton  impudence,  or  disrespect,  failure  or  refusal  to 
do  the  work  assigned  to  him,  idleness,  or  abandonment  of 
the  premises,  was  treated  as  a  vagrant.  In  1866  46  the  law 
ceased  to  be  a  race  distinction  when,  by  a  new  enactment, 
it  was  greatly  limited  and  made  applicable  to  whites  and 
blacks  alike. 

46 


LABOR  CONTRACTS  OF  NEGROES 

The  law  of  Kentucky 47  required  contracts  between 
white  persons  and  Negroes  to  be  in  writing  and  attested  by 
some  white  person.  The  contracts  were  to  be  treated  as 
entire,  so  that,  if  either  party  should,  without  good  cause, 
abandon  the  contract,  the  other  should  be  held  to  have  per- 
formed his  obligation. 

Mississippi  *8  enacted  that  all  contracts  for  labor  with 
freedmen,  free  Negroes,  or  mulattoes  for  a  longer  period 
than  one  month  should  be  in  writing,  attested  by  two  dis- 
interested white  persons  in  the  county  where  the  labor  was 
to  be  performed,  and  read  to  the  Negro  by  some  officer.  If 
the  laborer  quit  without  good  cause  before  the  expiration 
of  the  term,  he  forfeited  his  wages  for  the  year  up  to  the 
time  of  quitting.  That  State  made  it  the  duty  of  every 
civil  officer  and  the  option  of  every  other  person  to  arrest 
and  carry  back  to  his  employer  every  Negro  laborer  who 
had  left,  and  the  person  making  the  arrest  was  entitled  to 
receive  five  dollars  as  a  fee  and  ten  cents  per  mile  from  the 
place  of  arrest  to  the  place  of  delivery,  the  same  to  be  paid 
by  the  employer  and  taken  out  of  the  wages  of  the  Negro. 
The  Negro  might  appeal  to  a  justice  of  the  peace  who 
might  summarily  try  the  merits  of  the  case.  Then,  either 
the  master  or  the  servant  might  appeal  to  the  county 
court  which  had  power  to  remand  the  deserter  to  the  em- 
ployer or  to  dispose  of  him  otherwise  as  it  thought  right 
and  just,  and  its  decision  was  final. 

In  Virginia  49  all  contracts  for  service  between  a  white 
person  and  a  Negro  for  more  than  two  months  had  to  be 
in  writing,  signed  by  both  parties,  acknowledged  before  a 
justice  of  the  peace,  notary  public,  clerk  of  the  county  or 
corporation  court,  overseer  of  the  poor,  or  two  or  more 

47 


THE    "BLACK   LAWS"    OF    1865-68 

credible  witnesses  in  the  county  or  corporation  where  the 
work  was  to  be  done.  And  the  justice,  notary,  etc.,  had  to 
read  and  explain  the  contract  to  the  Negro. 

Of  all  the  Southern  States,  South  Carolina 60  went 
much  the  furthest  into  detail  as  to  contracts  for  service. 
Persons  of  color  who  made  contracts  for  service  or  labor 
were  to  be  known  as  servants,  and  those  with  whom  they 
contracted,  as  masters.  Contracts  for  one  month  or  more 
must  be  in  writing,  attested  by  one  white  witness,  and 
approved  by  the  judge  of  the  district  court  or  a  magistrate. 
If  the  period  of  service  was  not  mentioned,  it  was  until 
the  twenty-fifth  of  December  next  after  making  the  con- 
tract. If  the  wages  were  not  stipulated,  they  were  to  be 
fixed  by  the  district  judge  or  magistrate  on  application  by 
one  of  the  parties  and  notice  to  the  other.  A  Negro,  ten 
years  or  more  of  age,  having  no  parent  living  in  the  dis- 
trict and  not  an  apprentice,  might  make  a  valid  contract 
for  a  year  or  less.  Contracts  must  be  presented  for  ap- 
proval within  twenty  days.  Contracts  for  one  month  or 
more  were  not  binding  on  the  servant  unless  written  and 
approved.  Failure  to  make  such  a  written  contract  was  a 
misdemeanor  punishable  by  a  fine  of  from  five  dollars  to 
fifty  dollars.  If  the  servant  received  only  board  and  cloth- 
ing, a  written  contract  was  unnecessary.  The  fee  for  ap- 
proval ranged  between  twenty-five  cents  for  a  contract  of 
one  month  or  less  to  one  dollar  for  a  contract  for  one  year 
and  one  dollar  for  each  year  or  part  of  a  year  in  addition, 
half  the  fee  to  be  paid  by  each  party. 

Labor  on  farms  was  minutely  regulated.  Hours  of 
labor,  except  on  Sundays,  were  from  sunrise  to  sunset, 
with  a  reasonable  interval  for  breakfast  and  dinner. 

48 


LABOR  CONTRACTS  OF  NEGROES 

Servants  must  "rise  at  the  dawn  in  the  morning,  feed, 
water,  and  care  for  the  animals  on  the  farm,  do  the  usual 
and  needful  work  about  the  premises,  prepare  their  meals 
for  the  day,  if  required  by  the  master,  and  begin  the  farm 
work  or  other  work  by  sunrise."  They  must  be  careful  of 
all  the  animals  and  property  of  their  masters,  and  especially 
of  the  animals  and  implements  used  by  them ;  must  prevent 
them  from  injury  by  others.  They  were  answerable  for 
all  property  lost,  destroyed,  or  injured  by  their  negligence, 
dishonesty,  or  bad  faith. 

All  lost  time,  not  occasioned  by  the  master,  and  all 
losses  caused  by  neglect  of  duty  might  be  deducted  from 
the  wages  of  the  servant.  Food,  nursing,  and  other  neces- 
saries for  the  servant,  while  absent  from  work  on  account 
of  sickness  or  other  cause,  might  also  be  deducted.  Serv- 
ants must  be  quiet  and  orderly  in  their  quarters,  at  their 
work,  and  on  the  premises.  They  must  extinguish  their 
lights  and  fires,  and  retire  to  rest  at  seasonable  hours. 
Work  at  night  and  out-door  work  in  bad  weather  was  not 
to  be  exacted  except  in  cases  of  necessity. 

Servants  were  not  to  be  kept  at  home  on  Sundays  un- 
less to  take  care  of  the  premises  or  animals,  for  work  of 
daily  necessity,  or  on  unusual  occasions ;  and  then  only  so 
many  as  were  necessary  to  do  the  work.  Sunday  work 
must  be  done  by  them  in  turn,  except  in  cases  of  sick- 
ness or  disability,  when  the  work  might  be  assigned 
out  of  order.  Those  away  on  Sunday  must  be  back  by 
sunset. 

Masters  might  give  servants  tasks,  and  might  require 
them  to  rate  themselves  as  full  hands,  three-quarters,  half, 
or  one-quarter  in  order  to  determine  the  task.  If  the  serv- 
5  49 


THE   "BLACK    LAWS"    OF    1865-68 

ant  complained  of  the  task,  the  district  judge  or  magistrate 
might  reduce  or  increase  it. 

Visitors  of  servants  could  not  be  invited  or  allowed  by 
the  servants  to  come  on  the  premises  of  the  master  without 
his  express  consent,  nor  could  servants  be  absent  from  the 
premises  without  such  permission. 

If  the  servant  left  his  employment  without  good  cause, 
he  forfeited  all  the  wages  due  him.  He  must  obey  all  law- 
ful orders  of  the  master  or  his  agent,  and  "  be  honest, 
truthful,  sober,  civil,  and  diligent  in  his  business."  The 
master  might  moderately  correct  servants  under  eighteen 
years  of  age.  He  was  not  liable  to  pay  for  any  additional 
services  of  a  servant,  if  they  were  necessary,  except  by  ex- 
press agreement. 

The  master  might  discharge  the  servant  for:  (1)  wil- 
ful disobedience  of  the  lawful  order  of  himself  or  his  agent ; 
(2)  habitual  negligence  or  indolence  in  business;  (3) 
drunkenness,  grossly  immoral  or  illegal  conduct;  (4)  want 
of  respect  and  courtesy  to  himself,  his  family,  guests,  or 
agents;  (5)  or  for  prolonged  absence  from  the  premises,  or 
absence  on  two  or  more  occasions  without  permission.  Or, 
if  the  master  preferred,  he  might  report  the  servant  to  the 
district  judge  or  magistrate,  who  had  power  to  inflict  suit- 
able corporal  punishment  or  impose  a  fine,  and  remand 
him  to  work;  the  fine  to  be  deducted  from  the  wages,  if 
not  paid.  These  were  the  means  by  which  the  judge  or 
magistrate  might  compel  the  servant  to  perform  his  con- 
tract. 

The  master  was  not  liable  to  third  persons  for  the  vol- 
untary trespasses,  torts,  and  misdemeanors  of  his  servants. 
Nor  was  he  liable  for  any  contract  of  his  servant  unless 

50 


LABOR  CONTRACTS  OF  NEGROES 

made  with  the  master's  authority,  nor  for  any  acts  of  the 
servant  unless  done  within  the  scope  of  his  authority  or  in 
the  course  of  his  employment  It  was  the  master's  duty 
to  protect  his  servant  from  violence  at  the  hands  of  others 
and  to  aid  him  in  getting  redress  for  injuries. 

For  a  person  to  deprive  the  master  of  the  services  of 
his  servant,  knowing  him  to  be  such,  by  enticing  him  away, 
harboring  him,  detaining  him,  beating,  confining,  disabling, 
or  in  any  way  injuring  him  was  punishable  by  a  fine  of 
from  twenty  dollars  to  two  hundred  dollars,  and  imprison- 
ment or  hard  labor  for  not  over  sixty  days.  In  addition, 
the  master  might  recover  damages  for  loss  of  such  services. 

The  master  had  the  right  to  command  the  servant  to 
aid  him  in  the  defence  of  his  own  person,  family,  premises, 
or  property.  He  did  not  have  to  furnish  medicine  or  med- 
ical assistance  to  the  servant  unless  he  especially  agreed  to 
do  so. 

The  master  might  inform  a  prospective  employer  of 
the  character  of  a  Negro  who  had  been  in  his  service,  and 
this  was  a  privileged  communication  unless  falsely  and 
maliciously  made.  The  servant  could  not  make  a  new 
contract  without  producing  the  discharge  of  his  former 
master  or  of  the  district  judge  or  magistrate. 

If  the  master  was  convicted  of  a  felony  or  if  he  man- 
aged or  controlled  his  servants  so  as  to  make  them  a  nui- 
sance to  the  neighborhood,  any  white  freeholder  might  com- 
plain to  the  district  judge  and  have  the  contract  annulled, 
and  the  master  could  not  employ  any  colored  servant 
within  two  years. 

A  servant  had  the  right  to  leave  his  master's  service  for : 
(1)  an  insufficient  supply  of  food;  (2)  an  unauthorized 

51 


THE    "BLACK   LAWS"    OF    1865-68 

battery  upon  his  person  or  upon  a  member  of  his  family, 
not  committed  in  the  defence  of  the  person,  family,  guest, 
or  agent  of  the  master;  (3)  invasion  by  the  master  of  the 
conjugal  rights  of  the  servant;  (4)  or  failure  by  the  mas- 
ter to  pay  wages  when  due.  In  any  one  of  the  above  cases, 
the  servant  might  collect  his  wages  due  him  at  the  time  of 
his  departure. 

If  the  master  died,  the  contract — contrary  to  the  usual 
rule  of  law — was  not  terminated  without  the  assent  of  the 
servant.  His  wages  up  to  one  year  took  preference  over 
other  debts  of  the  master.  If  the  servant  was  wrongfully 
discharged,  he  could  collect  wages  for  the  whole  period 
of  the  contract.  Upon  the  servant's  discharge  or  the  expi- 
ration of  his  term  of  service,  the  master  must  furnish  him 
a  certificate  of  discharge,  and  upon  his  request,  a  certifi- 
cate of  character.  If  the  servant  forged  or  altered  this  cer- 
tificate— as  by  falsely  claiming  that  he  had  been  in  a  cer- 
tain previous  service — he  was  guilty  of  a  misdemeanor, 
punishable  by  a  fine  of  not  over  one  hundred  dollars.  All 
disputes  as  to  alleged  wrongful  discharges  or  departures 
were  to  be  heard  by  the  district  judge,  who  could  compel 
the  master  to  take  back  the  servant  or  forfeit  a  penalty  of 
a  fine  of  twenty  dollars;  or  compel  the  servant  to  return 
to  his  master  under  pain  of  corporal  punishment  or  fine. 

A  servant  was  not  liable  for  contracts  made  by  the  ex- 
press authority  of  his  master.  Nor  was  he  liable  civilly  or 
criminally  for  any  act  done  by  the  command  of  his  master 
in  defence  of  his  master's  person,  family,  guest,  servant, 
premises,  or  property. 

Negroes  employed  as  house  servants  had,  at  "  all  hours 
of  the  day  and  night,  and  on  all  days  of  the  week,"  to 

52 


APPRENTICE    LAWS 

answer  promptly  all  calls  and  execute  all  lawful  orders  and 
commands  of  the  master's  family.  They  had  to  be  espe- 
cially civil  and  polite  to  their  master,  his  family,  and 
guests,  for  which  they  in  turn  should  "  receive  gentle  and 
kind  treatment." 

The  statute  provided  for  a  regular  form  of -con  tract  be- 
tween master  and  servant,  which  was  understood  to  include 
all  of  the  above  stipulations  unless  otherwise  provided. 


APPRENTICE   LAWS 

The  early  legislatures  also  made  detailed  apprentice 
laws.  Although  it  is  scarcely  open  to  argument  that,  in 
making  such  laws,  they  did  not  have  in  mind  primarily 
Negroes,  still  many  of  the  statutes  made  no  mention  of 
race,  and,  therefore,  cannot  be  properly  discussed  here. 
Thus,  Alabama  51  had  a  long  statute  on  apprentices,  but  the 
only  reference  to  the  Negro  was  the  rule  that,  if  the  minor 
be  a  child  of  a  freedman,  the  former  owner  of  the  child 
should  have  the  preference  of  apprenticing  him,  if  a  suit- 
able person. 

In  Kentucky,52  if  the  apprentice  was  white,  the  mas- 
ter must  teach  him  reading,  writing,  and  common  arith- 
metic up  to  and  including  the  "  Eule  of  Three " ;  if  a 
Negro,  the  master  must  pay  at  the  end  of  the  apprentice- 
ship fifty  dollars  to  a  girl  and  one  hundred  dollars  to  a 
boy,  but  if  the  master  should  teach  the  apprentice  to  read 
and  write,  he  was  not  bound  to  pay  any  money.  In  Ken- 
tucky, also,  in  apprenticing  Negroes,  preference  was  given 
to  their  former  owners,  if  the  latter  were  suitable  persons. 

Mississippi 53  had  an  elaborate  apprentice  law  which 
53 


THE    "BLACK    LAWS"    OF    1865-68 

related  only  to  freedmen,  free  Negroes,  and  mulattoes.  The 
sheriffs,  justices  of  the  peace,  and  other  civil  officers  of  the 
county  had  to  report  to  the  probate  court  semiannually,  in 
January  and  July,  the  names  of  all  freedmen,  free  Negroes, 
and  mulattoes,  under  the  age  of  eighteen,  who  where  or- 
phans or  whose  parents  were  unable  or  unwilling  to  sup- 
port them.  It  was  the  duty  of  the  court,  thereupon,  to 
order  the  apprenticing  of  such  minors,  preference  being 
given  to  their  former  masters  if  suitable  persons.  The 
master  had  to  furnish  a  bond  payable  to  the  State  condi- 
tioned upon  his  furnishing  the  minor  with  sufficient  food 
and  clothing,  treating  him  humanely,  giving  him  medical 
attention  when  sick,  and,  if  the  minor  was  under  fifteen, 
teaching  him  or  having  him  taught  to  read  and  write. 
Males  were  bound  till  they  were  twenty-one;  females,  till 
they  were  eighteen.  The  master  could  inflict  moderate  cor- 
poral chastisement  as  a  father  or  guardian  might  do;  but 
in  no  case  could  he  inflict  cruel  or  inhuman  punishment. 

If  the  apprentice  ran  away,  the  master  might  pursue 
him  and  bring  him  before  a  justice  of  the  peace  who  could 
remand  him  to  the  service  of  his  master.  If  the  apprentice 
refused  to  return,  he  might  be  put  into  jail  until  the  next 
term  of  the  court,  when  his  case  would  be  investigated.  If 
it  was  found  that  he  left  without  cause,  he  could  be  pun- 
ished like  a  hired  f  reedman ;  but  if  he  had  a  good  cause,  the 
court  might  discharge  him  and  enter  judgment  against  his 
master  for  not  over  one  hundred  dollars  to  be  paid  to  the 
apprentice.  Anyone  enticing  an  apprentice  away  from  his 
master,  knowingly  employing  him,  furnishing  him  food  or 
clothing,  or  giving  or  selling  him  liquor  without  the  mas- 
ter's consent  was  guilty  of  a  high  misdemeanor. 

54 


APPRENTICE   LAWS 

If  the  master  wished  to  get  rid  of  the  apprentice,  he 
might  go  before  the  probate  court,  which  could  cancel  his 
bond,  and  re-apprentice  the  minor.  If  the  master  died,  the 
court  in  re-apprenticing  would  give  preference  to  the  widow 
or  other  member  of  the  family  of  the  deceased.  If  the 
master  wished  to  move  to  another  State  and  take  his  ap- 
prentice with  him,  he  had  to  execute  a  bond  conditioned 
upon  his  compliance  with  the  apprentice  laws  of  the  State 
to  which  he  was  going.  Any  parent  of  a  free  Negro  or 
mulatto  might  apprentice  his  minor  child,  and  if  the  age 
could  not  be  fixed  by  record  testimony,  the  court  fixed  it. 

The  only  race  distinction  made  by  North  Carolina  54 
was  the  law  that  no  white  child  should  be  bound  to  a  col- 
ored master  or  mistress,  and  this  came  in  1874 — long  after 
the  period  here  considered. 

The  apprentice  laws  of  South  Carolina  55  which  applied 
only  to  Negroes  were  almost  as  elaborate  as  those  of  Mis- 
sissippi. A  child  over  two  years  of  age,  born  of  a  colored 
parent,  might  be  bound  as  an  apprentice  to  any  respectable 
white  or  colored  person ;  if  a  male,  till  he  was  twenty-one ; 
if  a  female,  till  she  was  eighteen.  Illegitimate  children 
might  be  bound  out  by  their  mother.  If  the  child  had 
no  parent  in  the  district;  or  if  his  parents  were  paupers, 
or  unable  to  support  him,  or  were  not  teaching  him  the 
habits  of  industry  and  honesty,  or  were  of  a  notoriously 
bad  character  or  vagrants,  or  if  either  of  them  had  been 
convicted  of  an  infamous  crime,  he  might  be  apprenticed 
by  the  district  judge  or  by  a  magistrate.  Males  of  twelve 
and  females  of  ten  had  to  sign  the  contract  of  apprentice- 
ship and  were  bound  thereby;  but  their  refusal  to  sign 
would  not  affect  the  validity  of  the  instrument.  If  the 

55 


THE    "BLACK   LAWS"    OF    1865-68 

apprenticeship  was  voluntary,  the  contract  had  to  be  under 
seal,  signed  by  the  master,  parent,  and  apprentice,  attested 
by  two  credible  witnesses,  and  approved  by  the  district 
judge  or  magistrate.  One  copy  of  the  contract  was  kept 
by  the  master,  another,  filed  in  the  office  of  the  clerk  of 
court.  The  master  had  to  pay  three  dollars  for  the  approval 
of  the  contract  by  the  district  judge  or  magistrate. 

Other  duties  devolving  upon  the  master  were  to  teach 
the  apprentice  the  business  of  husbandry  or  some  other  use- 
ful trade  or  business  specified  in  the  contract;  to  furnish 
him  wholesome  food  and  suitable  clothing;  to  teach  him 
habits  of  industry,  honesty,  and  morality;  to  govern  and 
treat  him  with  humanity ;  and  if  there  was  a  colored  school 
within  convenient  distance,  to  send  him  to  school  as  much 
as  six  weeks  of  each  year  after  he  was  ten  years  of  age.  The 
teacher  of  such  school  must  have  the  license  of  the  district 
judge  to  establish  it. 

The  master  could  inflict  moderate  chastisement,  im- 
pose reasonable  restraint  on  the  apprentice,  and  bring  him 
back  if  he  ran  away.  If  the  master  neglected  his  duty  or 
subjected  the  apprentice  to  the  danger  of  moral  contamina- 
tion, the  district  judge  might  dissolve  the  relation  of  mas- 
ter and  apprentice.  All  cases  of  dispute  between  master 
and  apprentice  were  to  be  tried  before  a  magistrate,  who 
had  the  power  to  punish  the  party  found  to  be  at  fault. 
If  the  judge  ordered  the  apprentice  discharged  for  immod- 
erate correction  or  unlawful  restraint,  the  master  might  be 
indicted  and  punished  by  a  fine  of  not  over  fifty  dollars 
or  imprisonment  of  thirty  days.  In  addition,  the  appren- 
tice had  an  action  for  damages. 

After  the  expiration  of  the  term  of  service,  the  appren- 
56 


APPRENTICE   LAWS 

tice  was  entitled  to  not  over  sixty  dollars  from  his  master. 
To  the  apprentice  also  applied  the  provisions  for  the  serv- 
ant under  contract,  which  have  been  considered,  except  that 
the  master  was  bound  to  furnish  him  medical  aid,  as  he 
did  not  have  to  do  in  the  case  of  the  servant.  And  for 
apprentices  also,  as  in  the  case  of  servants,  there  was  a  reg- 
ular form  of  contract  which  was  understood  to  contain  all 
the  above  stipulations. 

In  Delaware,56  not  a  Southern  State,  but  much  like  the 
Southern  States  in  its  dealings  with  the  Negro,  in  its  code 
of  1852  as  amended  in  1893,  is  this  belated  statute :  "  Any 
two  justices  of  the  peace,  on  receiving  information  of  any 
Negro  or  mulatto  child  in  their  county,  having  no  parents 
in  this  State,  or  who,  being  under  the  age  of  fifteen  years, 
have  no  parent  able  to  maintain  them,  or  who  do  not  bring 
them  up  to  industry  and  stable  employment,  shall  issue 
process  to  a  constable  commanding  him  to  bring  such  child 
before  them  at  a  specified  time  and  place,  and  to  give  notice 
thereof  to  the  parents,  if  any,  and  shall  thereupon  inquire 
into  their  circumstances;  and  if  it  appear  to  be  a  proper 
case  for  binding  such  child,  they  shall  proceed  to  bind  said 
child  as  a  servant,  unless  they  shall  deem  the  binding, 
under  the  circumstances,  to  be  inexpedient." 

The  constitutionality  of  these  apprentice  laws  was 
tested  as  early  as  1867.5T  A  Negro  girl,  who  had  been  a 
slave  in  Maryland  and  had  been  freed  by  the  Constitution 
of  that  State,  November  1,  1864,  was,  two  days  later,  ap- 
prenticed by  her  mother  to  her  former  master.  The  laws 
governing  Negro  apprentices  differed  from  those  governing 
white  apprentices  in  that  the  master  did  not  obligate  him- 
self to  teach  the  Negro  apprentice  reading,  writing,  and 

57 


THE    "BLACK    LAWS"    OF    1865-68 

arithmetic,  and  retained  the  right  to  transmit  the  appren- 
tice anywhere  in  the  county.  Upon  a  petition  for  a  writ 
of  habeas  corpus,  the  Federal  court  held  that  the  Maryland 
law  resulted  in  practical  slavery  and,  hence,  violated  the 
Thirteenth  Amendment  and  the  Civil  Rights  Bill  of  1866. 
The  other  Southern  States  had  apprentice  laws,  possi- 
bly as  detailed  as  the  ones  here  considered,  but  they  can- 
not be  treated  of  here  because  they  applied  to  white  and 
colored  children  alike. 


VAGRANCY   LAWS 

The  present  vagrancy  laws  of  the  South  have  been 
much  criticised  for  the  reason,  as  it  is  alleged,  that  they 
are  used  to  get  recruits  for  chain  gangs  and  convict  camps, 
and  that  Negro  vagrants  are  taken  up  while  white  vagrants 
go  scotfree.  Be  that  as  it  may,  the  fault  lies  with  the  offi- 
cers, not  with  the  law,  for  the  law,  on  its  face,  applies  to 
both  races  equally.  But  the  first  years  after  the  War  did 
witness  the  enactment  of  vagrancy  laws  which  had  special 
application  to  Negroes.  Some  States  passed  vagrancy  laws 
which  made  no  race  distinction,  but,  as  in  the  case  of  ap- 
prentices, it  is  beyond  dispute  that  they  were  aimed  espe- 
cially at  the  Negro. 

The  following  persons  South  Carolina  58  classed  as  va- 
grants :  ( 1 )  all  persons  who  have  not  some  fixed  and  known 
place  of  abode,  and  some  lawful  and  reputable  employment ; 
(2)  those  who  have  not  some  visible  and  known  means  of 
a  fair,  honest,  and  reputable  livelihood;  (3)  all  common 
prostitutes;  (4)  those  who  are  found  wandering  from  place 
to  place,  vending,  bartering,  or  peddling  any  articles  or 

58 


VAGRANCY    LAWS 

commodities  without  a  license;  (5)  all  common  gamblers; 
(6)  persons  who  lead  idle  or  disorderly  lives,  or  keep  or 
frequent  disorderly  or  disreputable  houses  or  places;  (7) 
those  who,  not  having  sufficient  means  of  support,  are  able 
to  work  and  do  not  work;  (8)  those  who  (whether  or  not 
they  own  lands,  or  are  lessees  or  mechanics)  do  not  provide 
a  reasonable  and  proper  maintenance  for  themselves  and 
families;  (9)  those  who  are  engaged  in  representing  pub- 
licly or  privately,  for  fee  or  reward,  without  license,  any 
tragedy,  interlude,  comedy,  farce,  play,  or  other  similar 
entertainment,  exhibition  of  the  circus,  sleight-of-hand, 
waxworks,  or  the  like;  (10)  those  who,  for  private  gain, 
without  license,  give  any  concert  or  musical  entertainment, 
of  any  description;  (11)  fortune  tellers;  (12)  sturdy  beg- 
gars; (13)  common  drunkards ;  (14)  those  who  hunt  game 
of  any  description,  or  fish  on  the  land  of  others  or  frequent 
the  premises,  contrary  to  the  will  of  the  occupants.  That 
the  South  Carolina  legislature  had  the  Negro  primarily  in 
mind  is  shown  by  the  fact  that  this  section  is  included  in 
the  act  "  to  establish  and  regulate  the  domestic  relations  of 
persons  of  color  and  to  amend  the  law  in  relation  to  pau- 
pers and  vagrancy." 

Mississippi 59  had  a  vagrancy  list  almost  as  extensive 
as  that  above  with  the  addition  that  any  freedmen,  free 
Negroes,  or  mulattoes  over  eighteen  years  of  age,  found  on 
the  second  Monday  in  January,  1866,  or  thereafter,  with 
no  lawful  employment  or  business,  or  found  unlawfully 
assembling  themselves  together  in  the  day  or  night  time, 
and  white  persons  "  so  assembling  with  freedmen,  free 
Negroes,  or  mulattoes  ...  on  terms  of  equality,  or  living 
in  adultery  or  fornication  with  a  freed  woman,  free  Negro, 

59 


THE    "BLACK   LAWS"    OF    1865-68 

or  mulatto/'  should  be  considered  vagrants.  The  white 
man  so  convicted  was  punishable  by  a  fine  of  two  hundred 
dollars  and  imprisonment  for  not  more  than  six  months; 
the  Negro,  by  a  fine  of  fifty  dollars  and  imprisonment  for 
not  over  ten  days.  A  Negro  unable  to  pay  his  fine  might 
be  hired  out  for  the  purpose,  but  no  such  provision  applied 
to  whites. 

PAUPER   LAWS 

Another  perplexing  problem  that  faced  the  Southern 
legislatures  was  how  to  meet  the  needs  of  the  paupers, 
white  and  Negro.  Much  of  the  property  of  the  white  peo- 
ple had  been  swept  away  entirely  or  had  greatly  deterio- 
rated in  value  as  a  result  of  the  War.  Few  of  the  Negroes, 
to  be  sure,  had  property  to  lose,  but  what  was  worse,  they 
had  lost  their  right  to  look  to  the  white  people  for  suste- 
nance. Many  of  them  were  unable  to  support  themselves, 
and  the  white  people  could  not  help  them.  The  legisla- 
tures, therefore,  adopted  the  plan  of  levying  a  tax  upon 
each  race  for  the  support  of  its  own  indigents.  South 
Carolina  and  Mississippi  again  took  the  lead. 

In  South  Carolina,60  when  a  person  of  color  was  un- 
able to  earn  his  support  and  was  likely  to  become  a  public 
charge,  the  father  and  grandfathers,  mother  and  grand- 
mothers, child  and  grandchildren,  brother  and  sister  of 
such  a  person  should  each  according  to  ability  contribute 
for  the  support  of  his  or  her  relative.  In  each  judicial  dis- 
trict there  was  a. "  Board  of  Eelief  of  Indigent  Persons  of 
Color,"  consisting  of  from  four  to  eight  magistrates,  each 
magistrate  looking  after  the  indigent  Negroes  in  his  pre- 
cinct. There  was  a  fund,  composed  of  fees  paid  for  the 

GO 


PAUPER   LAWS 

approval  of  contracts  for  service,  instruments  of  appren- 
ticeship, licenses,  fines,  penalties,  forfeitures,  and  wages  of 
convicts,  for  the  relief  of  indigent  Negroes.  If  this  fund 
was  insufficient,  the  board  might  impose  a  tax  of  one  dollar 
upon  all  male  persons  of  color  between  eighteen  and  fifty, 
and  fifty  cents  upon  each  female  between  eighteen  and 
forty-five.  This  tax  had  to  be  paid  on  the  day  fixed  or  the 
person  rendered  himself  liable  to  pay  a  double  tax.  It  was 
the  duty  of  every  occupant  of  premises  to  make  a  report 
to  the  magistrate  of  any  indigent  colored  person  thereon, 
and  the  magistrate  had  to  make  inquiry  into  the  condition 
and  wants  of  such  Negroes  so  reported.  Moreover,  the 
magistrate  had  to  make  a  semiannual  report  of  the  condi- 
tion of  such  Negroes  to  the  chairman  of  the  Board  of  Ke- 
lief.  The  machinery  for  taking  care  of  Negro  paupers  was 
worked  out  in  more  detail  than  it  would  be  profitable  to  go 
into  here. 

South  Carolina  made  also  these  very  humane  provi- 
sions :  Where,  upon  any  farm  or  lands,  there  were,  on  De- 
cember 21,  1865,  persons  of  color  who  were  formerly  the 
slaves  of  the  owner,  lessee,  or  occupant  of  the  farm  or 
lands  present  there  on  November  10,  1865,  and  had  been 
there  six  months  previous,  helpless,  either  from  old  age, 
infancy,  disease,  or  other  cause,  and  unable  to  maintain 
themselves  and  had  no  parent  or  other  relative  able  to  main- 
tain them  or  to  provide  other  houses  or  quarters,  it  was 
not  lawful  for  the  present  or  any  subsequent  owner,  lessee, 
or  occupant  before  January  1,  1867,  to  evict  such  helpless 
person  of  color,  under  penalty  of  a  fine  of  fifty  dollars,  or 
imprisonment  of  one  month. 

The  law  of  Mississippi 81  provided  that  the  same  liabili- 
61 


THE    "BLACK    LAWS"    OF    1865-38 

ties  should  rest  on  Negroes  to  support  their  indigents  as 
upon  white  persons  to  support  theirs.  It  levied  a  tax  of 
one  dollar  upon  every  freedman,  free  Negro,  or  mulatto 
between  eighteen  and  sixty  to  go  into  the  Freedmen's  Pau- 
per Fund.  If  a  Negro  refused  to  pay  the  tax,  he  might  be 
arrested  and  hired  out  till  he  had  worked  out  the  amount. 

The  Southern  States  between  1865  and  1868  passed 
many  statutes  relative  to  the  marital  relations  of  Negroes 
and  to  their  right  to  testify  in  court.  But  these  statutes 
are  to  be  discussed  in  later  chapters.  It  may  be  said,  how- 
ever, in  passing,  that  the  district  judge,  so  often  referred 
to  in  connection  with  the  South  Carolina  laws,  was  a  special 
officer  whose  main  duty  was  to  preside  over  cases  and  dis- 
putes to  which  Negroes  were  parties. 

This  chapter  has  been  confined  to  the  early  industrial 
distinctions  between  the  races — that  is,  to  those  laws  which 
related  to  the  rights  of  the  Negro  as  a  bread-winner.  These 
are  the  distinctions  brought  forward  by  those  who  believed 
in  radical  reconstruction  measures  in  the  South,  as  an  argu- 
ment for  their  position.  It  was  urged  by  such  that,  unless 
Congress  stepped  in  and  took  a  hand,  the  Southern  States 
would  reenslave  the  Negro :  they  pointed  particularly  to  the 
laws  of  Mississippi  and  South  Carolina  in  confirmation  of 
their  contention.  And  there  was  apparently  good  ground 
for  such  a  view.  The  laws  providing  that  colored  laborers 
should  be  called  servants  and  their  employers  masters,  that 
they  should  arise  at  a  certain  time  and  work  so  many  hours 
per  day,  that  they  could  not  leave  the  premises  or  receive 
visitors  without  the  master's  consent,  and  the  like,  sounded 
very  much  like  prescribing  the  duties  and  privileges  of  a 

62 


PAUPER    LAWS 

slave.  But,  on  the  other  hand,  many  of  the  requirements 
were  for  the  protection  of  the  Negro.  Such,  for  instance, 
were  the  statutes  requiring  contracts  for  service  to  be  in 
writing  and  the  terms  of  them  explained  to  the  Negro ;  that 
helpless  ex-slaves  should  not  be  evicted  from  their  old 
homes  within  two  years  from  January  1,  1865 ;  that  Negro 
paupers  should  be  cared  for;  and  that  the  master  must 
teach  his  apprentice  to  read  and  write,  must  give  him  good 
food  and  clothing,  and  treat  him  humanely. 

A  discussion,  however,  of  the  merits  of  these  early  laws 
is  out  of  place  here.  But  it  is  only  fair  to  remember,  in 
reading  them,  that  the  Southern  legislatures  were,  in  many 
instances,  only  following  precedents  that  had  been  set  by 
the  free  States  in  dealing  with  free  Negroes,  and  that  the 
States,  either  Northern  or  Southern,  had  not  yet  looked 
upon  the  Negro  as  a  citizen  with  the  rights  guaranteed  him 
by  the  amended  Federal  Constitution.  Industrial  condi- 
tions in  the  South  were  so  demoralized  by  the  War  and 
Emancipation  that  the  legislatures  considered  it  imperative 
upon  them  to  take  immediate  and  positive  steps  to  establish 
an  industrial  relation  between  the  races. 

Practically  all  of  these  laws  were  repealed  or  became 
dead  letters  as  soon  as  the  Fourteenth  Amendment  was 
passed  or,  at  least,  as  soon  as  the  government  of  the  South- 
ern States  went  into  the  hands  of  the  Eeconstructionists. 
But  they  are  still  interesting  historically  as  having  fur- 
nished an  argument  for  the  radical  regime  of  Reconstruc- 
tion which  Thaddeus  Stevens  and  his  supporters  inaugu- 
rated and  advanced. 


63 


THE    "BLACK   LAWS"    OF    1865-68 


NOT 


ES 

1  Laws  of  Md.,  1846-47,  chap.  27. 

2  Art.  Ill,  sec.  43. 

3  Revised  Stat,  1852,  pp.  143-46. 

4  Laws  of  Mo.,  1847,  pp.  103-04. 

B  Wilson:  "The  Rise  and  Fall  of  the  Slave  Power  in 
America,"  II,   p.   170. 

6  Const.,  1852,  Art.  XILT. 

7  This  was  held  to  be  in  violation  of  the  Federal  Consti- 
tution in  Smith  v.  Moody,  1866,  26  Ind.  299,  on  the  ground 
that  the  Negro  had  become  a  citizen  and,  as  such,  entitled 
to  migrate  from  one  State  into  another. 

8  The  section  of  the  statute  which  related  to  colonization 
was  repealed  in  1865  because  the  legislature  thought  that 
those  authorized  to  act  under  the  statute  were  not  render- 
ing any  adequate  service  to  the  State.     Laws  of  Ind.,  1865, 
p.  63. 

9 Wilson:   "The  Rise  and  Fall  of  the  Slave  Power  in 
America,"  II,  pp.  183-85. 

10  Pub.  Laws  of  111.,  1853,  p.  57. 

11  Repealed  Feb.  7,  1865.    Pub.  Laws  of  111.,  1865,  p.  105. 

12  Laws  of  la.,  1850-51,  pp.  172-73. 

13  Repealed  in  1864.    Laws  of  la.,  1864,  p.  6. 

14  Gen.  Laws  of  Ore.,  1850-51,  pp.  181-82. 

15  Flack :    "  The    Adoption   of   the    Fourteenth    Amend- 
ment," 1908,  John  Hopkins  Press,  pp.  20,  et  seq. 

16  Art  IV,  sec.  19. 

17  Art.  vrn. 

18  Laws  of  S.  C.,  1865,  p.  271. 

19  Art.  IT,  sec.  5,  par.  1. 

20  Laws  of  Ky.,  1863,  p.  366. 

21  Laws  of  S.  C.,  1865,  p.  276. 

64 


NOTES 

22  In  three  places,  at  least,  in  North  Carolina  a  Negro  is 
not  allowed  to  stay  over  night.    They  are  Canton  (Haywood 
County),  Mitchell,  and  Madison  Counties,  all  in  the  west- 
ern part  of  the  State.     Negroes  may  work  unmolested  all 
day,  but,  if  they  linger  after  nightfall,  they  are  reminded 
that  it  would  not  be  healthy  for  them  to  remain  during  the 
night.     The  Raleigh,  N.  C.,  News  and  Observer,  Aug.  19, 
1906.    Also  see  The  Independent,  vol.  59,  p.  139,  for  a  sim- 
ilar situation  in  Syracuse,  Ohio,  and  Baker :  "  Following  the 
Colour  Line,"  pp.  71-73  and  126. 

23  Code,  1867,  sec.  1237. 

24  Code,  1867,  sec.  1233 ;  Laws  of  Ala.,  1865-66,  p.  105. 

25  Laws  of  S.  C.,  1865,  p.  275. 
26IUd.,  p.  299. 

27  Laws  of  Miss.,  1865,  pp.  82-83. 

28  Laws  of  Tenn.,  1865,  p.  23. 

29  Laws  of  Fla.,  1865,  pp.  25  and  37. 

30  Laws  of  Miss.,  1865,  pp.  165-66. 

31  Laws  of  S.  C.,  1865,  p.  275. 

32  Laws  of  Ala.,  1865-66,  p.  55. 

33  Laws  of  Ky.,  1865-66,  pp.  68-69. 

34  Laws  of  Miss.,  1865,  pp.  165-66. 

85  Laws  of  Ariz.,  1867,  p.  19;  1873,  p.  78. 
"Ibid.,  1883,  p.  114. 

37  Laws  of  Idaho,  1879,  p.  31. 

38  Laws  of  Dak.  Ty.,  1864-65,  p.  192. 

39  Laws  of  Neb.,  1881,  p.  274;  1891,  p.  267. 

40  Gen.  Laws  of  N.  M.,  1880,  p.  427;  act  1876,  chap.  28. 

41  Laws  of  Utah,  1882,  p.  32. 

42  Laws  of  Ore.,  1868,  pp.  18-19. 

43  Laws  of  Wash.,  1867,  pp.  95-96. 

44  Revised  Stat.,  1903,  p.  202. 

45  Laws  of  Fla.,  1865,  pp.  32-33. 

6  65 


THE    "BLACK   LAWS"    OP    1865-68 

48  Ibid.,  1866,  p.  22. 

47  Laws  of  Ky.,  1865-66,  p.  52. 

48  Laws  of  Miss.,  1865,  pp.  83-84. 

49  Laws  of  Va.,  1865-66,  p.  83 ;  repealed  in  1871— Laws  of 
Va.,  1870-71,  p.  147. 

60  Laws  of  S.  C.,  1865,  pp.  295-299  and  275-76. 

61  Laws  of  Ala.,  1865-66,  pp.  128-31. 

62  Laws  of  Ky.,  1865-66,  pp.  49-50. 

68iLaws  of  Miss.,  1865,  pp.   86-90.     This  was  repealed 
Feb.  1,  1867— Laws  of  Miss.,  1866-67,  pp.  443-44. 
54  Laws  of  N.  C.,  1874-75,  p.  92. 
"Laws  of  S.  C.,  1865,  pp.  292-95. 

66  Kevised  Code,  1852,  as  amended  in  1893,  p.  609. 

67  In  re  Turner,  1867,  Fed.  Case  No.  14,247. 

68  Laws  of  S.  C.,  1865,  pp.  303-04. 

69  Laws  of  Miss.,  1865,  pp.  90-93. 

60  Laws  of  S.  C.,  1865,  pp.  299-303. 
81  Laws  of  Miss.,  1865,  pp.  92-93. 


CHAPTER  V 

RECONSTRUCTION  OF  MARITAL  RELATIONS  OF  NEGROES 

ONE  of  the  perplexing  problems  that  arose  out  of 
Emancipation  was  the  fixing  of  the  marital  relations  among 
Negroes.  It  is  generally  known  that  the  marriage  ties  be- 
tween slaves  were  loose  and  their  domestic  relations  irregu- 
lar. In  some  instances,  slave  marriages  were  solemnized 
according  to  legal  requirements,  by  either  a  white  clergy- 
man or  other  proper  officer  of  the  law ;  in  others,  there  was 
the  common  law  marriage — that  is,  the  parties  lived  to- 
gether as  husband  and  wife  under  a  simple,  unrecorded 
agreement  between  themselves;  in  still  other  instances, 
there  was  deplorable  promiscuity. 

When  the  Negro  was  made  a  citizen,  it  became  neces- 
sary at  once  to  settle  his  marital  relations.  If  the  usual 
slave  marriages  were  not  recognized  as  legal,  then  the  off- 
spring of  such  unions  were  bastards  with  the  usual  disquali- 
fications of  that  class,  among  which  is  their  partial  inca- 
pacity to  inherit  property.  In  order  to  secure  to  Negroes 
the  rights  of  heirs,  it  was  necessary  to  legalize  slave  mar- 
riages, at  least  to  the  extent  of  giving  to  the  children  of 
such  marriages  the  right  of  inheritance.  This  was  accom- 
plished in  one  of  three  ways.  Some  States  required  the 
emancipated  slaves  to  be  remarried  in  order  to  legitimate 
their  offspring;  others  required  them  to  appear  before  an 

67 


MARITAL   RELATIONS   OF   NEGROES 

officer,  declare  their  desire  to  continue  to  live  together,  and 
get  a  certificate;  others  still,  and  these  were  in  the  major- 
ity, passed  statutes  legalizing  all  slave  marriages.  A  few 
States  did  not  adopt  any  one  of  these  three  methods  hut 
left  it  to  the  courts  to  recognize  the  legality  of  such  mar- 
riages as  cases  arose. 


REMARRIAGES 

Among  the  States  which  adopted  the  method  of  remar- 
rying was  Florida,1  which,  by  a  law  of  1866,  required  all 
colored  persons  living  together  as  husband  and  wife,  who 
had  not  been  legally  married,  and  who  wished  to  continue 
so  to  live  together,  to  be  married  within  nine  months  from 
the  passage  of  the  statute  on  January  llth.  If  they  failed 
to  be  married  but  continued  to  live  together,  they  were  pun- 
ished as  guilty  of  fornication  and  adultery.  By  the  second 
marriage,  their  children  were  legitimated.  The  law  made 
it  incumbent  upon  the  clerk  of  the  court,  upon  application 
by  the  parties  and  a  tender  of  the  required  fee,  to  enter  a 
certificate  of  marriage  upon  his  register.  Anyone  practic- 
ing fraud  upon  Negroes  by  pretending  to  perform  the  mar- 
riage ceremony  without  authority  to  do  so  was  guilty  of  a 
misdemeanor  and  punishable  by  a  fine  not  exceeding  one 
thousand  dollars,  imprisonment  not  over  six  months,  or 
might  be  sentenced  to  stand  in  a  pillory  not  over  one  hour. 
After  the  expiration  of  the  nine  months  named  in  the  stat- 
ute, the  marriage  requirements  for  white  and  colored  per- 
sons were  the  same.  This  statute  of  1866  2  was  amended, 
on  December  14,  of  the  same  year,  to  the  effect  that,  if  per- 
sons of  color  had  lived  together  as  husband  and  wife  and 

68 


REMARRIAGES 

had  recognized  each  other  as  such,  they  were  to  be  consid- 
ered married  and  their  children  to  be  legitimate.  Thus,  the 
necessity  of  a  remarriage  was  obviated.  The  amendment 
was  added  apparently  because  of  the  great  number  of  in- 
dictments for  adultery  against  those  who  had  not  complied 
with  the  law  of  January  llth. 

The  Georgia  3  Constitution  of  1865  directed  the  General 
Assembly  at  its  next  session  to  pass  a  law  to  legalize  the 
existing  slave  marriages  and  to  provide  for  the  contracting 
and  solemnizing  of  future  marriages  and,  in  connection 
with  this,  to  define  and  regulate  the  Negro's  right  to  devise 
and  inherit  property.  The  General  Assembly  4  responded 
in  1866  by  enacting  a  statute  by  which  persons  of  color  then 
living  together  as  husband  and  wife  were  declared  to  be 
so.  If  the  man  had  two  reputed  wives  or  the  wife  two  re- 
puted husbands,  he  or  she  must  select  one  of  the  two  as 
wife  or  husband,  with  her  or  his  consent,  and  have  the 
ceremony  of  marriage  performed.  If  they  continued  to 
cohabit  without  making  this  choice,  they  were  guilty  of 
fornication  and  adultery.  It  was  not  enough  to  make  the 
selection  and  live  faithful  to  the  one  chosen;  the  marriage 
ceremony  was  a  requisite.5  Unless  there  were  two  reputed 
husbands  or  wives,  the  ceremony  was  not  necessary.6  By 
the  same  act 7  the  children  of  slave  marriages  were  legiti- 
mated, and  Negro  ministers  were  given  a  similar  right  to 
perform  marriage  ceremonies  for  Negroes  as  white  minis- 
ters had  for  both  races. 

Missouri,8  in  1865,  required  all  persons  of  color  claim- 
ing to  be  married  and  wishing  to  continue  in  that  relation 
to  appear  before  some  one  authorized  to  perform  the  cere- 
mony and  be  joined  in  marriage. 

69 


The  same  year,  South  Carolina  9  passed  a  statute  of 
ninety-nine  sections  relative  to  persons  of  color,  eleven  of 
which  concerned  their  marital  relations.  This  statute  es- 
tablished the  relation  of  husband  and  wife  between  persons 
of  color,  and  declared  that  those  then  living  as  such  were 
husband  and  wife.  If  a  man  had  two  or  more  reputed 
wives  or  a  woman  two  or  more  reputed  husbands,  he  or  she 
must  choose  one  of  them  by  April  1,  1866,  and  be  remar- 
ried. Children  born  before  the  enactment  of  this  law  were 
declared  to  be  the  legitimate  offspring  of  their  mother,  and 
of  their  putative  father  also  if  they  were  acknowledged  by 
him.  Thereafter,  Negroes  must  be  married  as  white  peo- 
ple were — by  a  clergyman,  judge,  magistrate,  or  other  judi- 
cial officer.  The  husband  who  abandoned  his  wife  or  the 
wife  who  abandoned  her  husband,  might  be  bound  out 
from  year  to  year  until  he  or  she  was  willing  to  resume 
conjugal  relations.  An  abandoned  wife  was  free  to  make 
a  contract  for  service.  South  Carolina  has  been  appar- 
ently the  only  State  to  provide  for  the  children  of  white 
fathers  and  Negro  mothers.  A  law 10  of  1872  declared 
that  such  children  might  inherit  from  their  father  if  he 
did  not  marry  another  woman  but  continued  to  live  with 
their  mother. 

CERTIFICATES   OF   MARRIAGE 

Kentucky,  Louisiana,  and  Maryland  provided  for  the 
marriage  of  former  slaves  by  the  second  method  enumer- 
ated above,  the  granting  of  certificates.  The  Kentucky 
law  "  declared  that  all  colored  persons  who  had  been  liv- 
ing together  as  husband  and  wife  and  who  continued  to  do 
so  should  be  regarded  as  legally  married  and  their  children 

70 


CERTIFICATES    OF   MARRIAGE 

legitimate.  But  the  man  and  woman  must  appear  before 
the  clerk  of  the  county  court  and  declare  that  they  had 
been  living  and  wished  to  continue  to  live  as  husband  and 
wife.  Upon  payment  of  fifty  cents,  the  clerk  recorded  the 
declaration,  and  for  twenty-five  cents  more  issued  a  certifi- 
cate thereof  to  the  parties.  It  was  not  a  sufficient  compli- 
ance with  the  statute  for  the  parties  to  continue  to  live  to- 
gether without  appearing  before  the  clerk  of  the  court.12 

An  interesting  case  13  which  arose  under  this  Kentucky 
statute  was  as  follows:  A  Negro  woman,  an  ex-slave  and 
living  as  the  wife  of  another  ex-slave,  made  her  promissory 
note  between  the  time  of  her  emancipation  and  the  date  of 
this  law.  Under  the  provision  of  the  statute,  the  man  and 
woman  appeared  before  the  clerk  of  the  court  and  obtained 
a  marriage  certificate.  Later,  she  was  sued  on  the  note 
and  pleaded  coverture.  At  that  time  a  married  woman 
could  not  make  a  valid  contract  in  her  own  name.  The 
court  held  the  plea  bad,  being  of  opinion  that,  as  between 
the  parties  to  the  marriage,  the  statute  validated  their 
union  from  the  beginning,  but  as  to  third  parties,  the 
woman  was  still  single  and  so  capable  of  making  a  valid 
contract. 

In  1895,  the  same  court14  held  that,  if  a  Negro  man  and 
woman  lived  together  while  slaves  as  husband  and  wife,  a 
customary  marriage  was  established,  the  court  saying  in  its 
opinion :  "  Since  the  passage  of  the  Act  of  February,  1866, 
.  .  .  the  general  tendency  of  the  decisions  of  this  court  has 
been  to  give  that  Act  of  1866  a  liberal  construction  with  a 
view  to  effectuate  its  clearly  defined  purpose."  And  a  late 
statute  15  of  1898  further  modified  the  law  of  1866  by  de- 
claring that  the  children  of  above  marriages  might  inherit 

71 


MARITAL   RELATIONS   OF   NEGROES 

property.  If  there  was  a  subsequent  marriage  and  children 
born  of  it,  the  slave  children  shared  with  them  pro  rata. 

A  statute  of  Louisiana/6  in  1868,  legalized  all  private 
or  religious  marriages,  provided  that  the  parties,  within 
two  years,  made  a  declaration  of  their  marriage  before  a 
notary  public  or  other  competent  officer,  giving  the  date 
of  the  marriage  and  the  number  and  ages  of  the  children. 
Though  the  statute  did  not  mention  Negroes,  it  must  have 
been  passed  for  their  benefit. 

In  1873,  the  following  case  17  came  before  the  Louisiana 
court:  A  Negro's  parents,  who  had  lived  together  as  hus- 
band and  wife,  died  before  Emancipation.  The  majority  of 
the  court  held  that,  if  they  had  lived  till  after  Emancipa- 
tion, their  children  would  have  been  capable  of  inheriting 
their  property,  but,  since  they  died  before  Emancipation, 
their  marriage  was  never  legalized,  and  their  offspring 
could  not  so  inherit.  The  dissenting  opinion  was  that, 
since  the  slaves  had  done  all  they  could  to  be  legally  mar- 
ried, they  should  be  recognized  as  married  and  their  chil- 
dren should  be  legitimated. 

Maryland,18  in  1867,  confirmed  and  made  valid  all  pre- 
vious marriages  between  colored  persons,  but  required  them 
to  prove  before  a  justice  of  the  peace  that  they  had  been  so 
married ;  and  a  certificate  to  that  effect  had  to  be  filed  with 
the  clerk  of  the  court.  Thereafter,  colored  persons  must 
secure  licenses  and  be  married  in  the  same  manner  as  white 
people. 


SLAVE    MARRIAGES    DECLARED    LEGAL    BY    STATUTE 
SLAVE  MARRIAGES   DECLARED    LEGAL  BY    STATUTE 

The  last  of  the  three  methods  of  reconstructing  the 
domestic  relations  of  former  slaves  was  by  declaring  slave 
marriages  legal  by  statute.  On  September  29,  1866,  the 
Constitutional  Convention  of  Alabama,  which  adopted  an 
ordinance  prohibiting  slavery,  also  enacted  19  that  all  mar- 
riages between  freedmen  and  freedwomen,  whether  dur- 
ing slavery  or  after,  solemnized  by  one  having  or  claim- 
ing to  have  the  authority,  should  be  valid,  if  the  parties 
were  still  living  together.  It  was  subsequently  held  that, 
under  this  act,  the  woman  had  a  right  of  dower,  although 
the  man  had  abandoned  her  and  married  another  woman 
within  a  month  after  such  act  was  passed.20  In  1870,  the 
Supreme  Court  of  the  State  held  that  the  children  of  slave 
marriages  were  not  bastards,  that  by  the  elevation  of  their 
parents  to  citizenship,  their  heritable  blood  was  restored.21 

Arkansas,22  in  1866,  legalized  marriages  of  all  persons 
of  color  who  then  lived  together  as  husband  and  wife  and 
made  their  children  legitimate,  but  provided  that  thereafter 
all  marriages  of  persons  of  color  must  be  recorded.  The 
same  year  Tennessee  23  passed  a  similar  statute. 

The  Constitution 24  of  Texas  of  1869  declared  that  all 
persons  should  be  considered  legally  married  who  in  sla- 
very lived  as  husband  and  wife  and  after  Emancipation 
either  continued  to  live  together  till  one  died  or  were  liv- 
ing together  at  the  time  of  the  adoption  of  the  Constitution. 
Such  a  marriage  completed  by  cohabitation  after  Emanci- 
pation was  valid,  though  the  parties  separated  within  five 
months  and  were  not  living  together  at  the  time  of  the 
adoption  of  the  Constitution.25 

73 


MARITAL    RELATIONS    OF    NEGROES 

The  law  of  Virginia 26  provided  that  persons  of  color 
living  as  husband  and  wife  on  February  27,  1866,  whether 
or  not  any  ceremony  had  been  performed,  should  be  consid- 
ered as  lawfully  married  and  their  children  legitimate.  If 
they  had  separated  prior  to  that  date  the  children  of  the 
woman,  if  recognized  by  the  man  to  be  his,  were  neverthe- 
less legitimate.  West  Virginia  2T  had  practically  the  same 
law,  except  the  latter  clause  about  recognition  by  the  father. 

Illinois,28  as  late  as  1891,  passed  a  statute  to  legalize 
slave  marriages  and  legitimate  the  children  thereof.  But 
this  law  did  not  apply  to  a  voidable  slave  marriage  in  an- 
other State,  disaffirmed  by  a  subsequent  legal  marriage 
before  the  enactment  of  the  statute.29  A  similar  decision 
under  a  similar  statute  was  rendered  in  Ohio  30  in  1883. 
These  decisions  would  indicate  that  a  slave  marriage  was 
valid  only  if  there  was  no  subsequent  marriage  of  either 
party  to  a  third  person  In  1876,  New  York 31  recog- 
nized as  valid  slave  marriages  contracted  in  slave  States 
with  the  consent  of  the  master. 


MARRIAGES   BETWEEN"    SLAVES   AND   FREE    NEGROES 

Statutes  relative  to  marriages  between  free  Negroes  and 
slaves  are  not  numerous.  Presumably,  the  term  "  persons 
of  color  "  included  both  Negroes  born  free  and  those  who 
had  been  slaves.  A  Tennessee  court,32  in  1882,  held  that 
the  formal  marriage  of  a  free  Negro  and  a  slave,  with  the 
consent  of  the  master,  followed  by  a  cohabitation  for  years, 
was  a  valid  marriage  and  entitled  the  woman  to  dower. 


FEDERAL   LEGISLATION 

The  Congress  of  the  United  States  has  had  occasion  to 
pass  upon  the  validity  of  slave  marriages  only  in  connec- 
tion with  pensions  to  the  descendants  of  colored  soldiers. 
An  act 33  of  1873  provided  that,  in  determining  whether  the 
widow  of  a  Negro  or  Indian  soldier  and  sailor  is  entitled 
to  a  pension,  it  is  necessary  only  for  the  claimants  to  show 
that  she  was  married  according  to  some  ceremony,  which 
she  and  the  deceased  deemed  obligatory,  that  they  habit- 
ually recognized  each  other  as  husband  and  wife,  and  were 
so  recognized  by  their  neighbors,  and  that  they  lived  to- 
gether up  to  the  date  of  his  enlistment.  It  was  also  pro- 
vided that  the  children  of  such  marriages  might  claim 
their  father's  pension. 

Though  they  proceeded  in  different  ways,  practically 
all  of  the  States  arrived  at  the  same  result.  If  slaves  were 
married  according  to  the  custom,  if  they  lived  as  husband 
and  wife  both  before  and  after  Emancipation,  their  union 
was  considered  a  valid  marriage  to  all  intents  and  purposes 
and  the  children  thereof  might  inherit.  Where  the  procure- 
ment of  a  certificate  or  remarriage  was  required,  if  one  of 
the  parties  took  advantage  of  the  opportunity  to  be  freed 
from  the  early  alliance,  as  happened  in  several  amusing  in- 
stances, and  took  another  spouse,  the  second  marriage  was 
the  valid  one,  and  the  children  of  the  slave  union  could  not 
inherit  their  parents'  property. 

It  scarcely  needs  to  add  that,  at  present,  the  marriage 
requirements  as  to  license,  age,  etc.,  are  in  all  States  pre- 
cisely the  same  both  for  white  and  colored  people. 

75 


MARITAL    RELATIONS    OF    NEGROES 

NOTES 

1  Laws  of  Fla.,  1865,  p.  31. 

2  Ibid.,  1866,  p.  22. 

3  Art.  II,  sec.  5,  par.  5. 

4  Laws  of  Ga.,  1865-66,  p.  240. 

6  Coiner  v.  Comer,  1892,  91  Ga.  314. 

8  WiUiams  v.  State,  1881,  67  Ga.  260. 

7  Laws  of  Ga.,  1866,  p.  156. 

8  Laws  of  Mo.,  1864,  p.  68. 

9  Laws  of  S.  C.,  1865,  pp.  291-92. 

10  Ibid.,  1871-72,  pp.  162-63. 

11  Laws  of  Ky.,  1865-66,  p.  37. 

12  Estill  v.  Kogers,  1866,  1  Bush  (Ky.)  62. 

13  Stewart,  of  color,  v.  Munchandler,  1867,  2  Bush  (Ky.) 
278. 

14  Scott  v.  Lairamore,  1895,  32  S.  W.  172. 

15  Laws  of  Ky.,  1898,  pp.  102-03. 

18  Eevised  Stat.  of  La.,  1870,  p.  436,  sec.  2212. 
"Pierre  v.  Fontennette,  1873,  25  La.  Ann.  617. 

18  Laws  of  Md.,  1867,  p.  858. 

19  Code,  1867,  p.  64. 

20  Washington  v.  Washington,  1881,  69  Ala.  281. 

21  Stikes  v.  Swanson,  1870,  44  Ala.  633.     See  Haden  v. 
Ivey,  1874,  51  Ala.  381. 

22  Acts  of  Ark.,  1866-67,  p.  52. 

23  Laws  of  Tenn.,  1865-66,  pp.  65  and  81 ;  Laws,  1869-70, 
p.  92. 

24  Art.  XII,  sec.  27. 

25Cumby  v.  Garland,  1894,  25  S.  W.  673;  Coleman  v. 
Vollmer,  1895,  31  S.  W.  413. 

28  Laws  of  Va.,  1865-66,  pp.  85-86. 
27  Laws  of  W.  Va.,  1866,  p.  102 ;  Laws,  1872-73,  p.  502. 
76 


NOTES 

28  Laws  of  111.,  1891,  pp.  163-64. 

29  Butler  v.  Butler,  1896,  44  N.  E.  203. 

30  McDowell  v.  Sapp,  1883,  39  O.  S.  558. 

31  Minor  v.  Jones,  1876,  2  Redf.  Sur.  (N.  Y.)  289. 

32  Down  v.  Allen,  1882,  78  Tenn.  (10  Lea)  652. 
33 17  Stat.  L.,  570,  chap.  234,  par.  11. 


CHAPTER   VI 
INTERMARRIAGE   AND    MISCEGENATION 

ONE  race  distinction,  which  has  not  been  confined  to  the 
South,  and  which  has,  in  a  large  measure,  escaped  the  ad- 
verse criticism  heaped  upon  other  race  distinctions  is  the 
prohibition  of  miscegenation  between  the  Caucasian  and 
the  colored  races.  The  term  "  miscegenation "  includes 
both  intermarriage  and  all  forms  of  illicit  intercourse  be- 
tween the  races.  Twenty-six  States  and  Territories,  in- 
cluding all  the  Southern  States,  have  laws  forbidding  the 
admixture  of  the  races;  applying  not  only  to  Negroes,  but 
also  to  Indians  and  Mongolians  in  States  where  the  latter 
races  are  present  in  considerable  numbers. 

INTERMARRIAGE  DURING   RECONSTRUCTION 

It  is  significant  that  during  the  years  of  Eeconstruction 
in  the  South,  when  the  Federal  and  State  governments 
were  endeavoring  to  eradicate  race  distinctions,  none  of  the 
statutes  against  miscegenation  appear  to  have  been  repealed. 
There  is  some  meager  authority — a  case  which  arose  in 
Tennessee  1  in  1872,  and  two  cases  in  North  Carolina  2  in 
1877 — which  might  tend  to  show  that  the  statutes  of  two 
Southern  States  were  repealed.  The  Tennessee  court  was 
of  opinion  that  intermarriage  was  not  prohibited  in  Alis- 

78 


INTERMARRIAGE    DURING   RECONSTRUCTION 

sissippi,  and  the  North  Carolina  courts  arrived  at  the  same 
conclusion  about  South  Carolina;  but  neither  court  speci- 
fied the  years  to  which  its  statement  applied,  and  a  careful 
examination  of  the  annual  laws  of  Mississippi  and  South 
Carolina  between  1865  and  1880  reveals  no  statutes  repeal- 
ing the  laws  against  intermarriage  in  those  States.  One  is 
led  to  conclude,  therefore,  that  the  statutes  against  misce- 
genation were  disregarded  in  a  few  instances  during  Re- 
construction, rather  than  repealed.  This  conclusion  is 
helped  out  by  the  fact  that  the  legislatures  manifested  no 
inclination  to  permit  miscegenation.  The  legislature  of 
South  -Carolina,3  for  instance,  in  1865,  before  the  State 
government  went  into  the  hands  of  the  Reconstructionists, 
enacted  laws,  covering  twenty-five  or  more  finely  printed 
pages,  defining  the  rights  of  Negroes  in  the  most  minute 
details,  as  was  seen  in  considering  the  "  Black  Laws  "  of 
1865-68.  These  laws  were  repealed  nine  months  later,  but 
the  legislature  was  careful  to  add  that  the  repealing  act  did 
not  apply  to  that  part  of  the  Act  of  1865  which  said  that 
marriage  between  a  white  person  and  a  person  of  color 
should  be  illegal  and  void.  The  legislature  of  Texas,4  in 
like  manner,  on  November  10,  1866,  repealed  most  of  its 
statutes  relating  to  free  Negroes,  but  added  that  nothing 
in  the  act  should  be  construed  to  repeal  any  laws  prohibit- 
ing intermarriage  of  the  white  and  black  races.  The  re- 
pealing statute  of  Arkansas  5  of  February  6,  1867,  made 
practically  the  same  exception  as  to  intermarriage. 

Determined  as  many  of  the  Reconstruction  promoters 
were  to  wipe  out  every  vestige  of  legally  recognized  race 
distinctions,  they  did  not  allow  their  zeal  to  carry  them 
to  the  extent  of  legislating  as  to  the  social  relations  of  the 

79 


INTERMARRIAGE   AND   MISCEGENATION 

/ 

races.  Georgia,  probably  fearing  that  some  legislature 
might  attempt  to  enact  such  measures,  in  its  Constitutions 
of  1868  6  and  1877  7  had  this  general  statement:  "The 
social  status  of  the  citizen  shall  never  be  the  subject  of  leg- 
islation." It  would  seem,  on  first  thought,  that  this  re- 
quirement would  defeat  its  own  purpose.  If  marriage  is  a 
social  status  and  if  legislation  as  to  the  social  status  of  the 
citizen  is  forever  prohibited,  how  can  a  law  prohibiting 
intermarriage  be  constitutional  ?  In  a  test  case 8  that  arose 
in  1869  the  Supreme  Court  of  the  State  very  neatly  ex- 
plained away  this  apparently  embarrassing  situation  by 
saying,  in  effect,  that  the  clause  in  the  Constitution  applied 
only  to  future  legislation,  and  it  did  not  affect  the  law  pro- 
hibiting intermarriage  then  in  force.  After  quoting  that 
clause  in  the  Constitution,  the  court  went  on  to  say: 
"  In  so  far  as  the  marriage  relation  is  connected  with  the 
social  status,  the  very  reverse  is  true.  That  section  of  the 
Constitution  forever  prohibits  legislation  of  any  character 
regulating  or  interfering  with  the  social  status.  It  leaves 
social  rights  and  status  where  it  finds  them.  It  prohibits 
the  legislature  from  repealing  any  laws  in  existence,  which 
protect  persons  in  the  free  regulation  among  themselves  of 
matters  properly  termed  social,  and  it  also  prohibits  the 
enactment  of  any  new  laws  on  that  subject  in  the  future." 
The  Constitution  of  Alabama 9  of  1901  provides  against 
possible  meddling  by  the  legislature  with  domestic  rela- 
tions in  more  outspoken  terms :  "  The  legislature  shall 
never  pass  any  law  to  authorize  or  legalize  any  marriage 
between  any  white  person  and  a  Negro  or  descendant  of  a 
Negro." 


80 


TO   WHOM    THE    LAWS   APPLY 

PRESENT    STATE    OF    THE    LAW    AGAINST    INTERMARRIAGE 

The  present  situation  as  regards  intermarriage  is  as  fol- 
lows :  Intermarriage  between  the  Caucasian  and  other  races 
is  prohibited  by  the  Constitutions  of  six  States,  all  South- 
ern, namely:  Alabama,9  Florida,10  Mississippi,11  North 
Carolina,12  South  Carolina,13  and  Tennessee.14  Intermar- 
riage is  prohibited  by  statute  also  in  the  above  States 
and  in  twenty  other  States  and  Territories,  namely:  Ala- 
bama,15 Arizona,16  Arkansas,17  California,18  Colorado,18 
Delaware,20  Florida,21  Georgia,22  Idaho,23  Indiana,24  Ken- 
tucky,25 Louisiana,26  Maryland,27  Mississippi,28  Missouri,2* 
Nebraska,30  Nevada,31  North  Carolina,32  Oklahoma,33  Ore- 
gon,34 South  Carolina,35  Tennessee,36  Texas,37  Utah,38 
Virginia,39  and  West  Virginia.40 


TO   WHOM   THE   LAWS   APPLY 

In  the  interpretation  of  these  statutes  against  inter- 
marriage, it  is  necessary,  at  the  outset,  to  determine  just 
who  are  included.  If  the  statutes  had  simply  enacted  that 
there  should  be  no  intermarriage  between  Caucasians,  on  the 
one  side,  and  Negroes,  Indians,  or  Mongolians,  on  the  other, 
they  would  have  left  the  great  body  of  mixed-blooded  people 
to  miscegenate  as  they  pleased.  Most  of  the  States  avoided 
this  difficulty  by  stating  clearly  to  whom  the  laws  apply. 
Virginia  and  Louisiana  are  the  only  States  simply  to 
enact  in  general  terms  that  there  shall  be  no  intermarriage 
between  white  persons  and  persons  of  color;  and  even  in 
Virginia  judicial  decisions  clearly  define  the  term  "  person 
of  color,"  so  there  is  no  difficulty  in  knowing  who  is  meant 
7  81 


INTERMARRIAGE   AND    MISCEGENATION 

by  the  statute.  Arkansas,  Colorado,  Delaware,  Idaho,  and 
Kentucky  prohibit  intermarriage  between  white  persons 
and  Negroes  or  mulattoes.  Georgia,  Texas,  and  Oklahoma 
place  within  the  prohibition  of  their  statutes  persons  of 
African  descent;  West  Virginia,  Negroes;  and  Florida, 
Negroes,  expressly  including  every  person  with  one-eighth 
or  more  of  Negro  blood.  Alabama  makes  its  law  apply  to 
Negroes  and  their  descendants  to  the  fifth  generation, 
though  one  ancestor  of  each  generation  was  white.  The 
Indiana  and  Missouri  statutes  extend  to  all  persons  having 
one-eighth  or  more  Negro  blood;  Maryland  to  Negroes  or 
persons  of  Negro  descent  to  the  third  generation  inclusive. 
Tennessee  includes  within  the  prohibition  Negroes,  mulat- 
toes, or  persons  of  mixed  blood  descended  from  a  Negro  to 
the  third  generation  inclusive.  The  Nebraska  law  applies 
to  persons  of  one-fourth  or  more  Negro  blood. 

The  States  which  have  a  large  Indian  or  Mongolian 
population  include  these  races  within  the  prohibition. 
Thus,  Arizona  prohibits  whites  to  intermarry  with  Negroes, 
Mongolians,  or  Indians  and  their  descendants;  California, 
with  Negroes,  Mongolians,  or  Indians  and  their  descen- 
dants; California,  with  Negroes,  Mongolians,  or  mulat- 
toes. It  is  interesting  to  note  that  the  word  "  Mongolian  " 
was  not  added  to  the  California  statute  "  till  1905.  This 
addition,  coming,  as  it  does,  so  nearly  contemporaneous 
with  the  school  trouble  in  San  Francisco,  is  evidence  that 
California  is  facing  a  race  problem  which  it  considers  seri- 
ous. The  Mississippi  law  applies  to  Negroes,  mulattoes, 
persons  who  have  one-eighth  or  more  Negro  blood,  Mongo- 
lians or  persons  who  have  one-eighth  or  more  Mongolian 
blood.  Nevada  includes  black  persons,  mulattoes,  Indians, 

82 


EFFECT   OF   ATTEMPTED   INTERMARRIAGE 

Chinese;  Oregon,  in  addition  to  Negroes,  prohibits  inter- 
marriage with  Chinese  and  with  persons  having  one-fourth 
or  more  Negro,  Chinese,  or  Kanaka  blood  or  having  more 
than  one-half  Indian  blood.  Utah  includes  simply  Negroes 
and  Mongolians;  North  Carolina,  Negroes  and  Indians. 
South  Carolina  prohibits  intermarriage  between  whites  and 
Indians,  Negroes,  mulattoes,  mestizoes,  or  half-breeds. 


EFFECT   OF   ATTEMPTED    INTERMARRIAGE 

Suppose  a  white  person  and  a  person  within  any  of  the 
prohibited  classes  do  attempt  to  intermarry.  What  is  the 
legal  result?  Indiana,  Kentucky,  Maryland,  Nebraska, 
North  Carolina,  and  Utah  declare  that  such  a  marriage  is 
void ;  Colorado,  Missouri,  and  Virginia,  that  it  is  absolutely 
void;  Arizona,  Georgia,  Oregon,  and  Tennessee,  that  it  is 
null  and  void;  Delaware  and  Mississippi,  that  it  is  unlaw- 
ful and  void ;  and  Arkansas,  California,  and  Idaho,  that  it 
is  illegal  and  void.  The  law  of  Florida  declares  that  such  a 
marriage  is  unlawful,  utterly  null  and  void  and  the  issue 
bastards  and  so  incapable  of  inheriting.  Louisiana  pro- 
vides that  such  a  marriage  is  prohibited,  the  celebration  of 
it  forbidden,  that  the  celebration  carries  with  it  no  effect, 
and  that  the  marriage  is  null  and  void.  South  Carolina 
enacts  that  it  is  "  utterly  null  and  void  and  of  none  effect." 
The  only  legal  effect  of  a  marriage  thus  declared  void  is  to 
impose  criminal  liability  upon  the  parties  to  it.  The  re- 
sult is  precisely  the  same  as  if  no  license  had  been  obtained 
or  ceremony  performed  and  the  parties  had  been  indulging 
in  illicit  relations.  A  Virginia  decision  says :  "  No  matter 
by  what  ceremonies  or  solemnities,  such  marriage  would 

83 


INTERMARRIAGE   AND    MISCEGENATION 

have  been  the  merest  nullity,  and  the  parties  must  have 
been  regarded  under  our  laws,  as  lewdly  associating  and  co- 
habiting together.  .  .  ." 42 

The  other  States  which  prohibit  intermarriage  simply 
declare  that  marriage  between  white  persons  and  Negroes 
is  illegal  and  prescribe  a  punishment  for  the  violation  of 
the  statute  against  miscegenation,  but  do  not  further  define 
the  legal  effect  of  such  a  marriage  contract.  But  whether 
the  marriage  is  declared  "  void  "  or  "  null  and  void  "  or 
"  absolutely  void  "  or  only  "  illegal,"  the  result  is  the  same. 


PUNISHMENT   FOR   INTERMARRIAGE 

Persons  of  different  races  who  attempt  to  intermarry  in 
violation  of  the  laws  subject  themselves  everywhere  to 
severe  penalties.  In  Alabama,  the  law  says  they  shall  be 
imprisoned  in  the  penitentiary  for  not  less  than  two,  nor 
more  than  seven  years.  In  Colorado,  they  are  guilty  of 
a  misdemeanor  and  punishable  by  a  fine  of  from  fifty  dol- 
lars to  five  hundred  dollars,  or  imprisonment  for  not  less 
than  three  months  nor  more  than  two  years,  or  both.  In 
Delaware,  they  are  guilty  of  a  misdemeanor  and  may  be 
fined  one  hundred  dollars.  Florida  says  they  shall  be  im- 
prisoned in  the  State  penitentiary  not  exceeding  ten  years 
or  fined  not  exceeding  one  thousand  dollars.  In  Indiana, 
if  they  knowingly  violate  the  law — that  is,  if  the  white 
person  knows  the  other  is  a  Negro  or  of  mixed  blood — they 
are  fined  not  less  than  one  hundred  dollars  nor  more  than 
one  thousand  dollars,  or  imprisoned  in  the  State  prison 
not  less  than  one  nor  more  than  ten  years.  Maryland  de- 
clares that  they  are  guilty  of  an  infamous  crime,  punish- 

84 


PUNISHMENT    FOR    INTERMARRIAGE 

able  by  imprisonment  in  the  penitentiary  not  less  than 
eighteen  months  nor  more  than  ten  years.  Mississippi 
makes  the  punishment  a  fine  of  five  hundred  dollars,  im- 
prisonment not  exceeding  ten  years,  or  both.  The  law  of 
Missouri  declares  that  one  who  knowingly  intermarries  in 
violation  of  the  statute  shall  be  punished  by  imprisonment 
in  the  penitentiary  two  years  or  by  a  fine  not  less  than 
one  hundred  dollars,  or  by  imprisonment  in  the  county 
jail  not  less  than  three  months,  or  by  both  such  fine  and 
imprisonment,  and  adds  that  the  jury  shall  determine 
the  amount  of  Negro  blood  by  appearance.  Nevada  enacts 
that  the  parties  are  guilty  of  a  misdemeanor  and  shall 
be  imprisoned  in  the  State  prison  not  less  than  one  nor 
more  than  two  years.  North  Carolina  brands  an  attempted 
intermarriage  as  an  infamous  crime  to  be  punished  by 
imprisonment  in  the  county  jail  or  State  prison  not  less 
than  four  months  nor  more  than  ten  years,  and  the  parties 
may  also  be  fined  at  the  discretion  of  the  court.  Okla- 
homa makes  it  a  felony  and  provides  that  the  parties  shall 
be  punished  by  a  fine  of  not  less  than  one  hundred  dol- 
lars nor  more  than  five  hundred  dollars  or  imprisonment 
not  less  than  thirty  days  nor  more  than  one  year,  or  both. 
Oregon  simply  makes  it  an  offence  punishable  by  impris- 
onment in  the  penitentiary  or  county  jail  between  three 
months  and  one  year.  South  Carolina 43  declares  at- 
tempted intermarriage  is  a  misdemeanor  punishable  by 
a  fine  of  not  less  than  five  hundred  dollars  or  imprisonment 
in  the  penitentiary  from  one  to  five  years.  Texas,  by  a 
law  of  1858,  still  in  force  in  1879,  prescribed  a  punish- 
ment for  the  white  person  who  attempted  to  marry  a 
Negro  but  no  punishment  for  the  Negro.  A  Federal 

85 


INTERMARRIAGE   AND    MISCEGENATION 

court 44  held  that  the  difference  of  punishment  was  in  vio- 
lation of  the  Fourteenth  Amendment,  but  that  the  law 
against  intermarriage  was  constitutional.  Virginia  pro- 
vides that  the  parties  shall  be  confined  in  the  penitentiary 
not  less  than  two  nor  more  than  five  years.  West  Vir- 
ginia would  confine  them  in  jail  not  over  one  year  and 
fine  them  not  exceeding  one  hundred  dollars.  Thus,  it 
appears  that  in  most  of  the  States  intermarriage  is  con- 
sidered a  very  serious  offence,  ranking  in  Colorado,  Dela- 
ware, Nevada,  and  South  Carolina,  as  a  misdemeanor ;  in 
Louisiana  and  North  Carolina  as  an  infamous  crime;  and 
in  Tennessee  and  Oklahoma  as  a  felony. 


PUNISHMENT    FOR   ISSUING    LICENSES 

With  no  less  severity  do  the  States  punish  those  who  is- 
sue licenses  to  persons  of  one  race  to  marry  those  of  an- 
other. Alabama  declares  that  anyone  knowingly  issuing 
a  license  for  the  marriage  of  a  white  and  colored  person 
shall  be  fined  not  less  than  one  hundred  dollars  nor  more 
than  one  thousand  dollars  and  may  also  be  imprisoned 
in  the  county  jail  or  sentenced  to  hard  labor  for  the  county 
for  not  more  than  six  months.  Colorado  makes  it  a  misde- 
meanor punishable  by  a  fine  of  one  hundred  dollars.  Flor- 
ida punishes  it  by  imprisonment  not  exceeding  two  years 
or  a  fine  not  exceeding  one  thousand  dollars.  North  Caro- 
lina simply  declares  it  to  be  a  misdemeanor  without  pre- 
scribing any  punishment  different  from  that  for  other 

misdemeanors.     Oklahollia  makes  it  a  misdemeanor  pun- 

p 
ishable  by  a  fine  of  not  less  than  one  hundred  nor  more 

than  five  hundred  dollars,  or  imprisonment  in  the  county 

86 


PUNISHMENT    FOR    PERFORMING   THE    CEREMONY 

jail  not  less  than  thirty  days  nor  more  than  one  year,  or 
both. 

PUNISHMENT   FOB  PERFORMING  THE  CEREMONY 

A  heavy  penalty  is  laid  also  upon  one  who  performs 
the  ceremony  for  those  who  marry  in  violation  of  the  laws 
against  miscegenation.  Alabama  provides  that  any  justice 
of  the  peace,  minister,  or  other  person,  who  knowingly 
performs  the  marriage  ceremony  between  a  white  and 
colored  person,  shall  be  fined  not  less  than  one  hundred 
dollars  nor  more  than  one  thousand  and,  at  the  discretion 
of  the  court,  imprisoned  in  the  country  jail  or  sentenced 
to  hard  labor  for  the  county  for  not  more  than  six  months. 
Arkansas  makes  anyone  performing  such  a  ceremony  guilty 
of  a  high  misdemeanor  punishable  by  a  fine  of  not  less 
than  one  hundred  dollars.  Colorado  declares  that  to  per- 
form the  ceremony  is  a  misdemeanor  punishable  by  a  fine 
of  between  fifty  dollars  and  five  hundred  dollars  or  im- 
prisonment between  three  months  and  two  years,  or  both. 
In  Delaware,  it  is  a  misdemeanor,  and  the  punishment  is 
a  one  hundred  dollar  fine.  Florida  either  imprisons  the 
person  performing  the  ceremony  not  over  one  year  or  im- 
poses a  fine  on  him  not  exceeding  one  thousand  dollars. 
North  Carolina  simply  defines  it  as  a  misdemeanor.  In- 
diana declares  that  one  who  knowingly  counsels  or  assists 
in  such  a  marriage  shall  be  fined  not  less  than  one  hundred 
dollars  nor  more  than  one  thousand  dollars.  Nevada 
makes  one  who  performs  the  ceremony  guilty  of  a  mis- 
demeanor and  subjects  him  to  imprisonment  in  the  State 
prison  not  less  than  one  year  nor  more  than  three  years. 
Oklahoma  makes  it  a  misdemeanor  and  imposes  a  fine  of 

87 


INTERMARRIAGE   AND   MISCEGENATION 

between  one  hundred  dollars  and  five  hundred  dollars,  or 
imprisonment  between  three  months  and  a  year,  or  both. 
The  law  of  Oregon  declares  that  one  who  wilfully  and 
knowingly  performs  such  marriage  ceremony  shall  be  im- 
prisoned in  the  penitentiary  or  county  jail  from  three 
months  to  one  year  and  fined  from  one  hundred  dollars  to 
one  thousand  dollars.  South  Carolina  provides  that  one 
who  knowingly  and  willingly  unites  persons  of  different 
races  in  the  bonds  of  matrimony  shall  be  guilty  of  a  mis- 
demeanor and  punished  by  a  fine  of  not  less  than  five  hun- 
dred dollars  nor  more  than  twelve  months'  imprisonment, 
or  both.  Virginia  declares  that  he  shall  forfeit  two  hun- 
dred dollars,  of  which  the  informant  shall  get  one-half; 
and  West  Virginia  provides  that  the  one  who  knowingly 
performs  the  ceremony  shall  be  guilty  of  a  misdemeanor 
and  fined  not  over  two  hundred  dollars. 


COHABITATION    WITHOUT   INTERMARRIAGE 

A  few  States  have  statutes  relative  to  illicit  relations 
between  white  and  colored  persons,  where  no  marriage  is 
pretended  to  exist.  Alabama  imposes  for  this  offence  upon 
both  man  and  woman  the  same  punishment  as  for  inter- 
marriage; a  living  together  in  adultery  one  day  with  in- 
tent to  continue  that  relation  has  been  held  to  constitute 
a  violation  of  the  statute.45  Florida  declares  that,  if  any 
white  person  and  Negro  or  mulatto  shall  live  together  in 
adultery  or  fornication  with  each  other,  each  shall  be  pun- 
ished by  imprisonment  not  exceeding  a  year,  or  by  a  fine 
not  exceeding  a  thousand  dollars.  The  law  adds  that  any 
Negro  man  and  white  woman  or  any  white  man  and  Negro 


STATES    REPEALING    LAWS    AGAINST    INTERMARRIAGE 

woman,  not  married  to  each  other,  who  habitually  live  in 
and  occupy  in  the  night-time  the  same  room,  no  other  per- 
son over  fifteen  years  of  age  being  present,  shall  be  pun- 
ished by  imprisonment  not  exceeding  twelve  months,  or 
by  a  fine  not  exceeding  five  hundred  dollars.  Nevada  pro- 
vides that,  if  any  white  person  shall  live  and  cohabit  with 
any  black  person,  mulatto,  Indian,  or  Chinese,  in  a  state 
of  fornication,  such  person  so  offending  shall  be  fined  not 
over  five  hundred  and  not  less  than  one  hundred  dollars, 
or  imprisonment  in  the  county  jail  between  one  and  six 
months,  or  both.  Louisiana  4S  has  the  most  recent  and  the 
most  thorough-going  statute  against  miscegenation;  it  was 
adopted  July  1,  1908.  It  provides  that  concubinage  be- 
tween a  white  person  and  a  Negro  is  a  felony,  punishable 
by  imprisonment  for  not  less  than  one  month  nor  more 
than  one  year.  Concubinage  is  defined  as  unlawful  co- 
habitation of  white  persons  and  Negroes  whether  open  or 
secret.  It  was  made  the  duty  of  the  judges  to  specially 
charge  the  grand  juries  upon  this  statute. 

The  most  interesting  feature  about  these  statutes  is 
that  they  impose  a  heavier  penalty  for  cohabitation  between 
a  white  and  a  colored  person  than  between  two  members 
of  the  same  race.  Yet  they  have  been  held  to  comply  with 
the  Constitution  of  the  United  States.  The  reasons  why 
such  statutes  are  held  to  be  constitutional  will  be  con- 
sidered later. 


STATES  REPEALING  LAWS  AGAINST  INTERMARRIAGE 

Only  five  States  that  once  had  laws  against  miscegena- 
tion have  repealed  them  since  1865.     New  Mexico,47  in 

89 


INTERMARRIAGE   AND    MISCEGENATION 

1866,  Ehode  Island,48  in  1881,  and  Maine,49  in  1883,  re- 
pealed their  laws  against  intermarriage  outright.  A 
statute  of  Michigan  50  in  1883  provided  that  all  marriages 
theretofore  contracted  between  white  persons  and  those 
wholly  or  in  part  of  African  descent  should  be  valid  and 
effectual  and  the  offspring  legitimate,  but  it  said  nothing 
about  marriages  contracted  in  the  future.  Professor  Fred- 
erick J.  Stimson  51  has  apparently  interpreted  the  statute 
to  apply  to  marriages  in  the  future  as  well  as  to  those 
already  contracted.  Finally,  Ohio  52  in  1887  repealed  its 
law  of  1877,  providing  for  the  punishment  of  persons  of 
"  pure  white  blood "  who  intermarry  or  have  carnal  in- 
tercourse with  any  Negro  or  person  having  a  distinct  and 
visible  admixture  of  African  blood. 


MARRIAGES     BETWEEN     THE     NEGRO     AND     NON-CAUCASIAN 

RACES 

It  is  significant  that  the  States  have  not  prohibited  in- 
termarriage between  two  different  races  except  where  one 
is  the  Caucasian.  In  no  State  is  it  unlawful  for  Mon- 
golians and  Indians,  Negroes  and  Mongolians,  or  Negroes 
and  Indians  to  intermarry.  The  only  exception  to  the  last 
is  that  in  North  Carolina  53  it  is  unlawful  for  Negroes  to 
intermarry  with  Croatan  Indians  or  to  go  to  the  same 
school  with  them.  To  this  statute  hangs  a  beautiful  his- 
torical tradition.  In  1585.,  the  date  of  the  first  attempt 
by  Englishmen  to  colonize  the  New  World,  there  was  an 
island  off  the  coast  of  North  Carolina  called  Croatoan. 
By  the  shifting  of  the  sands,  it  is  now  probably  a  part 
of  Hatteras  or  Ocracoke  Island.  In  1587,  a  colony  of  one 

90 


MARRIAGES    BETWEEN    NEGRO    AND    NON -CAUCASIAN 

hundred  and  seventy-seven  persons  under  John  White  was 
landed  by  Sir  Walter  Raleigh  on  this  island.  Here,  the 
same  year,  was  born  Virginia  Dare,  granddaughter  of  John 
White  and  the  first  child  of  English  parents  born  in  Amer- 
ica. Later,  part  of  the  colonists  under  White  had  to  go 
back  to  England  to  seek  further  aid.  By  agreement,  those 
left  behind  were  to  go  over  to  the  friendly  Croatoan  Indi- 
ans if  they  needed  succor.  When  Governor  White  returned 
many  months  later,  he  found  the  settlement  deserted  and 
carved  upon  a  tree  nearby  the  single  word  "  Croatoan." 
This  supposedly  meant  that  the  colonists  had  gone  over 
to  the  Croatoans.  For  some  unexplained  reason,  the  party 
under  White  never  went  in  search  of  their  lost  brethren. 
Not  a  word  more  has  ever  been  heard  of  Virginia  Dare  and 
the  others.  A  tradition  says  that  they  went  over  to  the 
Croatoans  and  eventually  became  absorbed  into  that  tribe.54 
Credence  is  given  to  this  by  the  fact  that  there  are  many 
Croatoan  Indians — now  called  Croatans — with  light  com- 
plexion and  blue  eyes.  Recently  a  considerable  body  of 
mixed-blooded  Indians  in  Robeson  County,  North  Caro- 
lina, have  laid  claim  to  descent  from  this  lost  colony,  and 
the  State  has  officially  recognized  them  under  a  separate 
name  as  the  "  Croatan  Indians."  Thus,  all  that  is  left  of 
Virginia  Dare  and  the  Lost  Colony  is  this  tradition  sup- 
ported by  the  presence  of  Indians  with  fair  skin  and  blue 
eyes,  and  the  statute  of  North  Carolina  that  the  blood  of 
these  early  settlers  shall  not  be  further  adulterated,  by 
miscegenation,  with  the  blood  of  the  Negro. 


91 


EFFECT    GIVEN    TO    MARRIAGES    IN    OTHER    STATES 

The  next  question  is  the  interpretation  of  the  laws 
against  intermarriage.  What  effect  will  a  State  that  pro- 
hibits miscegenation  give  to  a  marriage  between  a  white 
person  and  Negro  in  a  State  that  permits  intermarriage? 
What  effect,  for  instance,  will  Virginia  give  to  a  marriage 
of  a  white  woman  to  a  Negro  man  contracted  in  Massachu- 
setts if  the  parties  go  to  Virginia  to  live?  If  the  Negro 
and  white  woman  were  residents  in  good  faith  of  Mas- 
sachusetts or  of  some  State  that  permits  intermarriage 
at  the  time  of  their  marriage,  their  marriage  will,  as 
a  general  rule,  be  recognized  as  valid  everywhere — even 
in  the  Southern  States.  Several  States,  including  Arkan- 
sas, Colorado,  Idaho,  Indiana,  Kentucky,  and  probably 
others,  in  their  statutes  prohibiting  intermarriage  make 
the  provision  that,  if  the  marriage  is  valid  where  con- 
summated, it  will  be  considered  valid  by  those  States.  A 
Tennessee  55  court  in  1872  did  refuse  to  recognize  as  valid 
a  marriage  celebrated  in  Mississippi  when  intermarriage 
was  permitted  in  Mississippi,  but  this  appears  to  be  the 
only  case  taking  that  view. 

If,  on  the  other  hand,  the  parties  leave  a  State  which 
prohibits  intermarriage  and  go  to  another  State  which 
allows  it,  solely  for  the  purpose  of  evading  the  laws  of  the 
former  State,  the  authority  is  practically  unanimous  that 
the  marriage  is  not  valid  in  the  State  the  laws  of  which 
they  attempted  to  evade.  This  point  is  covered  both  by 
statute  and  by  judicial  decision.  A  Delaware  statute,  for 
instance,  declares  that  the  Negro  and  white  person  are 
equally  guilty  if  they  are  married  in  another  State  and 

92 


EFFECT    GIVEN    TO    MARRIAGES    IN    OTHER    STATES 

move  into  Delaware  as  if  they  had  been  married  in  Dela- 
ware. Mississippi,  also,  punishes  parties  attempting  to 
evade  its  laws  by  marrying  out  of  the  State  and  return- 
ing to  Mississippi,  to  the  same  extent  as  if  they  had 
attempted  to  intermarry  in  Mississippi.  The  Georgia  stat- 
ute, which  is  typical,  is  as  follows :  "  All  marriages  solem- 
nized in  another  State  by  parties  intending  at  the  time 
to  reside  in  this  State  shall  have  the  same  legal  conse- 
quences and  effect  as  if  solemnized  in  this  State.  Parties 
residing  in  this  State  cannot  evade  any  of  the  provisions 
of  its  laws  as  to  marriage  by  going  into  another  State 
for  the  solemnization  of  the  ceremony."  Statutes  fo  the 
same  effect  are  in  force  in  Arizona,  Virginia,  West  Vir- 
ginia, and  possibly  other  States.  In  the  absence  of  statute, 
the  point  is  covered  with  the  same  result  by  judicial  de- 
cision. In  the  Tennessee  case,  to  which  reference  has  al- 
ready been  made,  the  court  said :  "  Each  State  is  sover- 
eign, a  government  within,  of,  and  for  itself,  with  the 
inherent  and  reserved  right  to  declare  and  maintain  its  own 
political  economy  for  the  good  of  its  citizens,  and  cannot 
be  subjected  to  the  recognition  of  a  fact  or  act  contra- 
vening its  public  policy  and  against  good  morals,  as  law- 
ful, because  it  was  made  or  existed  in  a  State  having  no 
prohibition  against  it  or  even  promoting  it." 

In  1878,  a  Negro  man  and  a  white  woman  went  over 
from  Virginia  5e  into  the  District  of  Columbia,  were  mar- 
ried, and  returned  to  Virginia,  where  they  were  prosecuted. 
The  Virginia  court  held  that,  although  the  forms  and 
ceremonies  of  marriage  are  governed  by  the  laws  of  the 
place  where  marriage  is  celebrated,  the  essentials  of  the  con- 
tract depend  upon  and  are  governed  by  the  laws  of  the 

93 


INTERMARRIAGE   AND    MISCEGENATION 

country  where  the  parties  are  domiciled  at  the  time  of  the 
marriage,  and  in  which  the  matrimonial  residence  is  con- 
templated. This  case  was  affirmed  by  the  Federal  court " 
the  next  year.  A  Georgia  r's  couple  who  also  went  to  the 
District  of  Columbia  to  be  married,  returned  to  their  na- 
tive State,  where  they  were  indicted  and  convicted  for 
violating  the  Georgia  statute  against  intermarriage. 

It  appears  that  Washington  has  been  and  is  the  City  of 
Refuge  for  such  miscegenating  couples.  It  has  been  held, 
however,  in  every  case,  that,  when  these  people  return  to 
Southern  States,  no  matter  where  married,  they  are  amen- 
able to  the  laws  of  those  States.  In  fact,  there  appears  to 
be  only  one  American  case  with  regard  to  Negroes  which 
holds  a  contrary  doctrine,  the  case  of  Medway  v.  Need- 
ham.59  There  a  white  person  and  Negro,  living  in  Mas- 
sachusetts, which  at  the  time,  1819,  prohibited  intermar- 
riage, went  to  Ehode  Island,  where  they  were  married  and 
whence  they  immediately  returned.  The  Supreme  Court 
of  Massachusetts  held  that  a  marriage,  if  valid  where 
celebrated,  is  valid  everywhere;  the  court  taking  no  ac- 
count of  the  purpose  of  the  parties  to  evade  the  law.  In 
rendering  this  decision,  the  Court  admitted  that  it  was 
going  counter  to  the  opinion  of  eminent  jurists.  The  de- 
cision has  not  been  followed,  it  appears,  by  any  other 
court.  It  may  be  taken  as  settled  that,  if  the  parties  leave 
the  State  for  the  purpose  of  evading  its  law,  intending  at 
the  time  to  return  to  that  State,  the  marriage  will  not  be 
recognized  as  valid  when  they  do  return.  But,  if  they  leave 
the  State  to  evade  the  law,  not  intending  at  the  time  to 
return  and  do  gain  a  bona  fide  residence  in  another  State 
and,  after  that,  do  return,  the  marriage  will  be  recognized. 

94 


INTERMARRIAGE   AND   THE   FEDERAL   CONSTITUTION 

In  other  words.,  to  furnish  a  State  grounds  to  declare  void 
a  marriage  celebrated  in  another  State  where  it  is  valid, 
the  parties  must  intend  not  only  to  evade  the  law  but  also 
not  to  gain  a  bona  fide  residence  in  the  State  to  which 
they  go. 

Efforts  have  been  made  to  prohibit  intermarriage  in  the 
District  of  Columbia.  At  the  last  session  of  the  Six- 
tieth Congress,  Senator  Milton,  of  Florida,  introduced 
a  bill  to  make  intermarriage  between  white  persons  and 
Negroes  a  crime  punishable  by  imprisonment  for  ten  years 
and  a  fine  of  one  thousand  dollars,  providing  that  one 
with  one-eighth  or  more  Negro  blood  should  come  within 
the  prohibition,  declaring  such  marriages  to  be  null  and 
void  and  the  issue  resulting  from  them  illegitimate  and  so 
incapable  of  inheritance.  This  bill  apparently  died  in 
the  committee  room.  A  resolution  in  the  Senate  to  recall 
it  from  the  Committee  on  the  Judiciary  was  tabled  on 
March  1,  1909,  by  a  vote  of  43  to  21. 

INTERMARRIAGE   AND  THE  FEDERAL   CONSTITUTION 

The  constitutionality  of  State  statutes  and  judicial  de- 
cisions which  have  refused  to  recognize  marriages  between 
Negroes  and  white  persons  celebrated  in  other  States  or  in 
the  District  of  Columbia  have  been  attacked  on  two  grounds : 
First,  that  they  are  in  violation  of  article  one,  section  ten, 
of  the  Constitution  of  the  United  States,  which  says,  in 
part,  that  no  State  shall  pass  any  law  impairing  the  obli- 
gation of  contracts;  and,  secondly,  that  they  contravene 
that  part  of  the  Fourteenth  Amendment  which  says  that 
no  State  shall  make  or  enforce  any  law  which  shall  abridge 

95 


INTERMARRIAGE   AND   MISCEGENATION 

the  privileges  and  immunities  of  citizens  of  the  United 
States. 

Marriage  is  declared  by  the  statutes  of  the  States  which 
prohibit  intermarriage,  just  as  by  other  States,  to  be  a 
civil  contract.  If  it  is  a  contract  and  if  marriage  between 
a  white  person  and  a  Negro  in  Massachusetts,  for  instance, 
is  valid,  when  the  parties  go  to  South  Carolina  to  live,  how 
can  the  South  Carolina  courts  declare  the  marriage  a  null- 
ity and  prosecute  the  parties  for  fornication  and  adultery 
without  contravening  the  Federal  Constitution?  The  only 
answer  is :  Marriage  is  a  civil  contract,  but  it  is  something 
more.  Almost  without  exception,  the  courts  have  held  tha't 
a  State  has  the  absolute  control  of  the  marriage  status 
within  its  borders.  The  early  case  of  State  v.  Gibson,60 
coming  in  1871  during  Reconstruction,  sounded  a  warning 
to  the  Federal  Government's  interfering  with  the  laws  of 
marriage.  The  court  said :  "  In  this  State  [Indiana]  mar- 
riage is  treated  as  a  civil  contract,  but  it  is  more  than  a 
mere  civil  contract.  It  is  a  public  institution  established 
by  God  himself,  is  recognized  in  all  Christian  and  civil- 
ized nations,  and  is  essential  to  the  peace,  happiness,  and 
well-being  of  society.  In  fact,  society  could  not  exist  with- 
out the  institution  of  marriage,  for  upon  it  all  the  social 
and  domestic  relations  are  based.  The  right  of  all  the 
States  to  regulate  and  control,  to  guard,  protect,  and 
preserve  this  God-given,  civilizing,  and  Christianizing  in- 
stitution is  of  inestimable  importance,  and  cannot  be  sur- 
rendered, nor  can  the  States  suffer  or  permit  any  inter- 
ference therewith.  If  the  Federal  Government  can  de- 
termine who  may  marry  in  a  State,  there  is  no  limit  to 
its  power.  .  .  ." 

96 


INTERMARRIAGE    AND   THE    FEDERAL   CONSTITUTION 

The  Supreme  Court  of  Alabama61  in  1872  declared 
that  the  laws  against  intermarriage  did  contravene  the 
Civil  Eights  Bill  and  the  Fourteenth  Amendment.  But 
this  case  was  expressly  overruled  by  Green  v.  State,62  in 
which  the  court,  answering  both  of  the  objections,  said, 
"  Marriage  is  not  a  mere  contract,  but  a  social  and  do- 
mestic institution  upon  which  are  founded  all  society  and 
order,  to  be  regulated  and  controlled  by  the  sovereign 
power  for  the  good  of  the  State ;  and  the  several  States  of 
the  Union  in  the  adoption  of  the  recent  Amendments  to 
the  Constitution  of  the  United  States  designed  to  secure 
to  citizens  rights  of  a  civil  or  political  nature  only,  and 
did  not  part  with  their  hitherto  unquestioned  power  of 
regulating,  within  their  own  borders,  matters  of  purely 
social  and  domestic  concern." 

There  are  Federal  cases  to  support  the  position  of  the 
State  Courts.  But  it  is  of  no  use  to  pile  up  citations  of 
decisions  further  to  establish  the  well-accepted  doctrine 
that  marriage  is  more  than  a  civil  contract,  that  it  is  a  do- 
mestic institution,  and  that  a  State,  by  virtue  of  its  police 
power,  has  absolute  control  as  to  who  may  contract  mar- 
riages or  live  in  that  relation  within  its  borders.63 

Twenty-six  States  and  Territories  prohibit  intermar- 
riage between  the  white  and  other  races.  They  recognize 
as  valid  such  marriages  when  contracted  in  a  State  which 
allows  them,  unless  the  parties  are  trying  to  evade  the  laws 
of  the  State  of  their  domicile  or  of  their  intended  matri- 
monial residence.  The  States  prescribe  a  heavier  penalty 
for  illicit  intercourse  between  white  persons  and  persons 
of  another  race  than  for  the  same  offence  between  two  per- 
8  97 


sons  of  the  same  race ;  they  inflict  heavy  punishments  upon 
ministers  and  other  officials  who  perform  a  marriage  cere- 
mony between  a  white  person  and  one  of  another  race, 
and  upon  those  who  issue  licenses  for  such  a  marriage; 
and  they  declare  the  offspring  of  such  marriages  illegiti- 
mate and  incapable  of  inheritance.  In  each  of  these  posi- 
tions, the  courts,  Federal  as  well  as  State,  have  upheld  the 
twenty-six  States  and  Territories. 

Twenty-four  States  and  Territories  do  not  prohibit  in- 
termarriage between  the  white  and  other  races.  It  is  not 
within  the  province  of  this  study  to  consider  the  actual 
amount  of  admixture  that  is  going  on  in  these  States. 
But  inasmuch  as  Boston  has  often  been  cited  as  the  city 
in  which  the  number  of  marriages  between  white  persons 
and  Negroes  is  very  large  (estimated  by  Senator  Money, 
of  Mississippi,  at  2,000  in  1902),  the  report  of  the  registry 
department  of  Boston  for  the  years  1900-1907  is  here 
added : 

INTERMARRIAGES    IN   BOSTON 


1900   

Colored  man 
White 
woman 

32 

White  man 
Colored 
woman 

3 

Total  Number 
of  Mixed 
Marriages 

35 

1901    

30 

1 

31 

1902    

25 

4 

29 

1903   

27 

2 

29 

1904   .  . 

27 

1 

28 

1905    

17 

2 

19 

1906    .  . 

17 

2 

19 

1907    . 

..28 

4 

32 

From  this  it  appears  that  the  number,  never  appreciably 
large,  has  been  steadily  decreasing. 

98 


NOTES 

The  following  is  what  Mr.  Ray  Stannard  Baker 64  has 
to  say  about  the  precise  fact  of  intermarriages  in  the 
Northern  States  in  general :  "  In  the  great  majority  of  in- 
termarriages the  white  women  belong  to  the  lower  walks 
of  life.  They  are  German,  Irish,  or  other  foreign  women, 
respectable  but  ignorant.  As  far  as  I  can  see  from  in- 
vestigating a  number  of  such  cases,  the  home  life  is  as 
happy  as  that  of  other  people  in  the  same  stratum  of  life. 
But  the  white  woman  who  marries  a  Negro  is  speedily 
declassed :  she  is  ostracised  by  the  white  people,  and  while 
she  finds  a  certain  place  among  the  Negroes,  she  is  not 
even  readily  accepted  as  a  Negro.  In  short,  she  is  cut 
off  from  both  races.  When  I  was  at  Xenia,  0.,  I  was  told 
of  a  case  of  a  white  man  who  was  arrested  for  living  with 
a  Negro  woman.  The  magistrate  compelled  him  to  marry 
the  Negro  woman  as  the  worst  punishment  he  could  invent. 

"  For  this  reason,  although  there  are  no  laws  in  most 
Northern  States  against  mixed  marriages,  and  although  the 
Negro  population  has  been  increasing,  the  number  of  in- 
termarriages is  not  only  not  increasing,  but  in  many  cities, 
as  in  Boston,  it  is  decreasing.  It  is  an  unpopular  institu- 
tion.'-' 

NOTES 

1  State  v.  Bell,  1872,  7  Baxter  (Tenn.)  9. 

2  State  v.  Boss,  1877,  76  N.  C.  242;  State  v.  Kennedy, 
1877,  76  N.  C.  251. 

3  Laws  of  S.  C.,  1866,  extra  sess.,  pp.  393-94. 

4  Laws  of  Tex.,  1866,  p.  131. 

6  Laws  of  Ark.,  1866-67,  p.  99. 
"Art.  I,  sec.  11. 

7  Art.  I,  par.  18. 

99 


INTERMARRIAGE   AND    MISCEGENATION 

8  Scott  v.  State,  1869,  39  Ga.  321. 

9  Sec.  102. 

10  Const.,  1885,  art.  XVI,  sec.  24. 

11  Const.,  1890,  art.  XIV,  sec.  7. 

12  Const.,  1875,  art.  XIV,  sec.  8. 

13  Const,  1895,  art.  HI,  sec.  33. 

14  Const.,  1870,  art.  XI,  sec.  14. 

15  Code,  1907,  III,  sec.  7421. 

"Revised  Stat,  1901,  sees.  3092  and  3094. 
17Kirby's  Digest,  1904,  sees.  5174,  5177,  and  5183. 

18  Civil  Code,  1906,  sec.  60. 

19  Kevised  Stat.,  1908,  sees.  4163  and  4165. 

20  Revised  Code,  1852,  as  amended  in  1893,  p.  593.     \ 

21  General  Stat.,  1906,  sees.  2579,  3529,  and  3531-32. 

22  Code,  1895,  II,  sees.  2422-25. 

23  Revised  Code,  1908,  I,  sees.  2616  and  2619. 

24  Annotated  Stat.,  1908,  sees.  2641,  2642,  8360,  and  8367. 

25  Statutes,  1909,  sees.  4615  and  4619. 

26  Merrick's  Revised  Civil  Code,  1900,  art.  94. 

27  Public  Gen.  Laws,  I,  sec.  305,  p.  878. 

28  Code,  1906,  sees.  1031  and  3244. 

29  Annotated  Stat.,  1906,  II,  sec.  2174. 

80  Compiled  Stat.,  1907,  sec.  4275. 

81  Compiled  Laws,  1861-1900,  sees.  4851-52. 

82  Pell's  Revisal  of  1908, 1,  sees.  2083  and  3369-70. 

33  General  Stat.,  1908,  sees.  3260  and  3262. 

34  Bellinger  and  Cotton's  Codes  and  Stat,  I,  sees.  1999- 
2001  and  II,  sec.  5217. 

35  Code,  1902,  I,  sec.  2664. 
88Code,  1896,  sees.  4186-87. 
87Sayles's  Civil  Stat,  I,  art  2959. 
88  Compiled  Laws,  1907,  sec.  1184. 
"Pollard's  Code,  1904,  sec.  2252. 

100 


NOTES 

40  Code,  1899,  p.  972. 

41  Laws  of  Calif.,  1905,  p.  554. 

42  Kinney's  Case,  1878,  30  Grat.  (Va.)  858,  861. 

43  Code  of  Criminal  Procedure,  1902,  sec.  293. 

44  Ex  parte  Francois,  1879,  Fed.  Case  No.  5,047. 

45  McAlpine  v.  State,  1897,  117  Ala.  93 ;  23  So.  130. 
49  Acts  of  La.,  1908,  pp.  105-06. 

47  Laws  of  N.  M.,  1866,  p.  90. 

48  Acts  of  R  I.,  Jan.  sess.,  1881,  p.  108. 

49  Laws  of  Me.,  1883,  p.  167. 

50  Pub.  Acts  of  Mich.,  1883,  p.  16. 

61  Frederick  J.  Stimson,  "  American  Statute  Law,"  I,  p. 
668. 

52  Laws  of  O.,  1877,  p.  277;  1887,  p.  34. 

53  Laws  of  N.  C.,  1887,  p.  494. 

54  Edward  Channing,   "  History  of  the  United   States," 
The  Macmillan  Co.,  1905, 1,  pp.  128-30. 

55  State  v.  Bell,  1872,  7  Baxter  (Tenn.)  9. 
86  Kinney  v.  Com.,  1878,  30  Grat.  (Va.)  858. 

67  Ex  parte  Kinney,  1879,  Fed.  Case  No.  7,825. 

68  State  v.  Tutty,  1890,  41  Fed.  753. 
59 16  Mass.  157  (1819). 

80  36  Ind.  389  (1871). 

61  Burns  v.  State,  1872,  48  Ala.  195. 

62  58  Ala.  190  (1877). 

63  State  v.  Hairston,  1869,  63  N.  C.  451 ;  Lonas  v.  State, 
1871,  50  Tenn.  (3  Heisk)  287;  Frasher  v.  State,  1877,  3  Tex. 
Ap.  263. 

64  "Following  the  Colour  Line,"  pp.  172-73. 


CHAPTER   VII 
CIVIL    RIGHTS    OF   NEGROES 

THE  Thirteenth  Amendment  to  the  Federal  Constitu- 
tion, prohibiting  slavery  or  involuntary  servitude,  except 
as  a  punishment  for  crime,  was  proposed  to  the  legislatures 
of  the  thirty-six  States  on  February  1,  1865,  a  little  over 
two  months  before  the  surrender  of  Lee  at  Appomatox,  and 
was  declared  to  have  been  ratified  by  twenty-seven  States, 
the  requisite  three-fourths,  by  December  18,  1865.  The 
latter  date  marked  the  Negro's  final  freedom  from  physi- 
cal bondage.  His  body  could  no  longer  be  owned  as  chattel 
property.  But  there  is  a  vast  difference  between  being  able 
to  say  "  No  man  owns  my  body,"  and  "  I  have  the  same 
rights,  privileges,  and  immunities  as  other  free  men." 
This  difference  the  Thirty-ninth  Congress — that  of  1865- 
1866 — fully  realized,  and  grappled  with. 

The  first  ten  Amendments  were  passed  soon  after  the 
adoption  of  the  Constitution  to  satisfy  the  demands  of 
those  who  were  jealous  of  the  power  of  the  Federal  gov- 
ernment. These,  in  brief,  guaranteed  to  the  citizens  of  the 
United  States  (1)  freedom  of  religion,  speech,  press,  as- 
sembly, and  of  petition  for  redress  of  grievances;  (2)  the 
right  to  keep  and  bear  arms;  (3)  the  right  not  to-  have 
soldiers  quartered  in  one's  house  in  time  of  peace  without 
one's  consent;  (4)  freedom  from  unreasonable  searches  and 

102 


FEDERAL    CIVIL    RIGHTS    LEGISLATION 

seizures;  (5)  the  right  not  to  be  denied  life,  liberty,  or 
property  without  due  process  of  law;  (6)  the  right  to 
trial  by  jury;  (7)  the  right  of  the  accused  to  be  con- 
fronted by  his  accuser;  (8)  the  right  not  to  have  one's 
property  taken  for  public  use  without  compensation;  and 
(9)  the  right  not  to  be  subjected  to  cruel  or  unusual  pun- 
ishment, and  not  to  have  excessive  bail  required.  These 
were  limitations  upon  the  power  of  Congress,  the  States 
themselves  having  guaranteed  such  rights  to  their  own 
citizens  by  their  bill  of  rights.  After  the  War,  the  Fed- 
eral government  was  fearful  that  the  States,  particularly 
those  lately  in  rebellion,  would  not  grant  these  rights  or 
privileges  to  the  freedmen,  who,  according  to  the  Dred 
Scott  decision,  were  not  citizens.  All  the  power  that  Con- 
gress had  over  the  States,  it  seems,  was  to  enforce  the 
Thirteenth  Amendment  by  appropriation  legislation.  But 
is  proceeded  to  make  the  most  of  the  power  it  had,  biding 
its  time  when  another  amendment  to  the  Constitution 
would  give  it  more  power  over  the  States. 

FEDERAL   CIVIL   RIGHTS   LEGISLATION 

The  first  step  taken  by  Congress,  under  the  power  sup- 
posedly arising  out  of  the  Thirteenth  Amendment,  was  an 
attempt  to  secure  to  the  Negro  his  so-called  "  civil  rights." 
Unfortunately,  there  seems  to  be  no  succinct  definition  of 
this  term.  Bouvier  *  defines  the  phrase  thus :  "  A  term 
applied  to  certain  rights  secured  to  citizens  of  the  United 
States  by  the  Thirteenth  and  Fourteenth  Amendments  to 
the  Constitution  and  by  various  acts  of  Congress  made  in 
pursuance  thereof."  This  definition,  however,  helps  little, 

103 


CIVIL   RIGHTS    OF   NEGROES 

and  one  is  thrown  back  upon  the*  Amendments  and  subsid- 
iary enactments  themselves  to  work  out  from  them  what 
are  the  civil  rights  of  a  citizen  and  of  the  Negro  in  par- 
ticular. 

During  the  summer  and  fall  of  1865,  between  the  close 
of  the  War  and  the  convening  of  Congress,  there  had  de- 
veloped on  the  part  of  the  radical  element  of  the  Republi- 
can party  under  Thaddeus  Stevens  an  opposition  to  Presi- 
dent Johnson's  Reconstruction  plans.  The  first  Civil 
Eights  Bill  passed  the  Senate  on  February  2,  1866,  passed 
the  House  a  few  days  later,  but  on  March  27,  was  returned 
with  the  veto  of  the  President.  It  was  passed,  however, 
over  his  veto  on  April  9,  1866,  and  was  thereafter  known 
as  the  Civil  Rights  Bill 2  of  1866.  The  first  section  reads: 
"  All  persons  born  in  the  United  States  and  not  subject  to 
any  foreign  power,  excluding  Indians  not  taxed,  are  hereby 
declared  to  be- citizens  of  the  United  States;  and  such 
citizens,  of  every  race  and  color,  without  regard  to  any 
previous  condition  of  slavery  or  involuntary  servitude,  ex- 
cept as  a  punishment  for  crime  whereof  the  party  shall  have 
been  duly  convicted,  shall  have  the  same  right,  in  every 
State  and  Territory  in  the  United  States,  to  make  and 
enforce  contracts,  to  sue,  be  parties,  and  give  evidence, 
to  inherit,  purchase,  lease,  sell  hold,  and  convey  real  and 
personal  property,  and  to  full  and  equal  benefits  of  all  laws 
and  proceedings  for  the  security  of  person  and  property, 
as  is  enjoyed  by  white  citizens,  and  shall  be  subject  to 
like  punishments,  pains,  and  penalties,  and  to  none  other, 
any  law,  statute,  ordinance,  regulation,  or  custom  to  the 
contrary  notwithstanding." 

It  is  evident  that  the  first  phrase  was  intended  to  con- 
104 


FEDERAL    CIVIL    RIGHTS    LEGISLATION 

travene  the  Dred  Scott  decision  and  to  establish  the  Ne- 
gro's citizenship.  While  the  Bill  was  before  Congress,  the 
great  subject  of  debate  was  as  to  just  what  rights  would 
be  given  thereby  to  thq  Negro.  Some  opposed  it  because 
they  thought  it  would  give  him  the  right  of  suffrage,  the 
right  to  intermarry  with  whites,  to  attend  the  same  schools 
and  churches,  to  sit  on  juries,  and  to  testify  in  courts. 
It  must  be  remembered  that  the  "  Black  Laws "  of  the 
free  States  were  still  in  force,  and  the  Congressmen  from 
those  States  were  as  jealous  of  Federal  interference  on  the 
subject  as  those  from  the  Southern  States. 

It  is  not  the  purpose  here  to  discuss  the  Civil  Rights 
Bill  as  it  was  regarded  by  the  people,  but  rather  as  it  was 
interpreted  by  the  courts.  Although  it  stood  scarcely  more 
than  two  years  before  it  was  eclipsed  and  practically  super- 
seded by  the  Fourteenth  Amendment,  nevertheless  it  stood 
long  enough  to  be  tested  by  the  courts. 

The  Negroes,  prompted  in  some  instances  probably  by 
white  persons,  undertook  immediately  to  see  what  rights 
were  really  secured  to  them  by  the  Bill.  In  Tennessee  and 
Mississippi,  in  1866,  convictions  were  had  under  the  ex- 
isting State  laws  against  intermarriage,  as  there  had  pre- 
viously been.  Appeal  to  the  Federal  Supreme  Court  was 
talked  of,  but  nothing  came  of  it.  With  a  view  to  testing 
their  rights,  Negroes  in  New  York  demanded  sleeper  ac- 
commodations on  railroads,  and  went  to  fashionable  res- 
taurants and  demanded  the  right  to  sit  with  the  white 
patrons,  but  in  both  instances  were  refused.  In  Baltimore 
they  sought  accommodations  on  street  cars,  in  theatres, 
saloons,  etc.  with  whites,  but  were  met  with  the  same  re- 
fusal.3 

105 


CIVIL   RIGHTS    OF   NEGROES 

The  constitutionality  of  the  Bill  was  denied  in  1867  by 
the  Court  of  Appeals  of  Kentucky,4  on  the  ground  that  it 
invaded  the  right  of  the  State  to  regulate  its  own  domestic 
concerns.  But  its  constitutionality  was  upheld  in  two 
cases :  United  States  v.  Khodes,5  1866,  in  the  Circuit  Court, 
a  case  involving  the  right  of  a  Negro  to  testify,  and  In  re 
Turner,6  in  the  Circuit  Court  also,  a  Maryland  case  in- 
volving the  laws  of  apprenticeship. 

It  appears  that  none  of  the  cases  involving  the  rights 
of  Negroes  in  public  places,  which  are  being  considered  par- 
ticularly in  this  chapter,  reached  the  higher  courts.  But 
Mr.  Flack  T  says :  "  The  instances  we  have  cited,  however, 
are  apparently  sufficient  to  justify  the  conclusion  that  the 
belief  prevailed  generally — north,  east,  west  and  south — 
especially  among  the  Negroes,  that  the  Civil  Rights  Bill 
gave  the  colored  people  the  same  rights  and  privileges  as 
white  men  as  regards  travel,  schools,  theatres,  churches, 
and  the  ordinary  rights  which  may  be  legally  demanded. 
There  also  seems  to  have  been  a  less  general  belief  that  it 
also  permitted  the  intermarriage  of  the  races." 

As  interesting  as  it  would  be  to  trace  this  Bill  and  the 
subsequent  Federal  enactments  through  Congress,  it  would 
take  one  too  far  afield.  He  must  accept  the  products  as 
they  came  from  the  crucible  of  debate,  and  interpret  their 
effect  upon  the  rights  of  Negroes. 

The  Civil  Rights  Bill  of  1866  was  practically  super- 
seded by  the  first  section  of  the  Fourteenth  Amendment, 
ratified  by  thirty-six  States  and  declared  operative  July  28, 
1868.  This  section  reads  as  follows :  "  All  persons  born 
or  naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States  and 

10G 


FEDERAL   CIVIL   RIGHTS   LEGISLATION 

of  the  State  wherein  they  reside.  No  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  im- 
munities of  citizens  of  the  United  States;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property,  with- 
out due  process  of  law,  or  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws." 

Mr.  Flack  8  says  that  the  purpose  in  the  adoption  of  this 
Amendment  was  (1)  to  make  the  Bill  of  Eights  (the  first 
eight  Amendments)  binding  upon  the  States  as  well  as 
upon  the  Nation;  (2)  to  give  validity  to  the  Civil  Eights 
Bill  of  I860;  and  (3)  to  declare  who  were  citizens  of  the 
United  States.  As  he  shows  by  an  analysis  of  the  debates 
in  Congress,  the  constitutionality  of  the  Civil  Eights  Bill 
of  18C6  was  doubted  by  many  of  its  able  advocates,  and  it 
was  natural  that  they  should  desire  to  make  their  tenets 
secure  by  incorporating  them  into  the  Constitution  itself. 
It  is  worth  remarking  that  on  May  1,  1870,  the  Civil  Eights 
Bill  of  18G6  was  practically  re-enacted.9 

The  words  "  Negro,"  "  race,"  or  "  color "  do  not  ap- 
pear in  the  first  section  of  the  Fourteenth  Amendment ;  but 
a  study  of  the  speeches  before  the  House  and  Senate  would 
show  that  the  legislators  had  the  Negro  primarily  in  mind, 
and  so  the  court  understood.  In  the  Slaughter-House 
Cases  10  of  1872,  cases  not  having  to  do  with  the  Negro  in 
the  slightest  degree,  Mr.  Justice  Miller  gave  an  interpreta- 
tion of  the  Fourteenth  Amendment  which  has  stood  as  a 
landmark.  He  said :  "...  on  the  most  casual  examination 
of  the  language  of  these  Amendments  [Thirteenth,  Four- 
teenth, and  Fifteenth],  no  one  can  fail  to  be  impressed 
with  the  one  pervading  purpose  found  in  them  all,  laying 
at  the  foundation  of  each,  and  without  which  none  of  them 

107 


CIVIL   RIGHTS   OF   NEGROES 

would  have  been  even  suggested;  we  mean  the  freedom  of 
the  slave  race,  the  security  and  firm  establishment  of  that 
freedom,  and  the  protection  of  the  newly-made  freeman 
and  citizen  from  the  oppressions  of  those  who  had  former- 
ly exercised  unlimited  dominion  over  him.  It  is  true  that 
only  the  Fifteenth  Amendment,  in  terms,  mentions  the 
Negro  by  speaking  of  his  color  and  his  slavery.  But  it 
is  just  as  true  that  each  of  the  other  articles  were  addressed 
to  the  grievances  of  that  race,  and  designed  to  remedy 
them  as  the  Fifteenth.  We  do  not  say  that  no  one  else 

but  the  Negro  can  share  in  their  protection But 

we  do  say  .  .  .  that  in  any  fair  and  just  construction  of 
any  section  or  phrase  of  these  Amendments,  it  is  necessary 
to  look  to  the  purpose  which  we  have  said  was  the  per- 
vading spirit  of  them  all,  the  evil  which  they  were  designed 
to  remedy,  and  the  process  of  continued  addition  to  the 
Constitution,  until  that  purpose  was  supposed  to  be  accom- 
plished, as  far  as  constitutional  law  can  accomplish  it." 
Without  further  citation  of  authorities,  it  may  be  assumed 
that  the  primary  purpose  of  Congress  in  drafting  the 
Fourteenth  Amendment  was  to  secure  and  protect  the 
rights  and  privileges  of  Negroes. 

The  next  Federal  legislation  on  the  subject  was  the 
Civil  Rights  Bill "  of  1875,  which  declared  that  all  per- 
sons within  the  jurisdiction  of  the  United  States  should  be 
entitled  to  the  full  and  equal  enjoyment  of  the  accommo- 
dations, advantages,  facilities,  and  privileges  of  inns,  pub- 
lic conveyances  on  land  or  water,  theatres  and  other  places 
of  public  amusement,  subject  only  to  the  conditions  es- 
tablished by  law  and  applicable  alike  to  citizens  of  every 
race  and  color,  regardless  of  any  previous  condition  of 

108 


FEDERAL   CIVIL   RIGHTS   LEGISLATION 

servitude.  The  penalty  for  the  violation  of  this  law  was 
the  forfeiture  of  five  hundred  dollars  to  the  person  ag- 
grieved and  a  fine  of  not  less  than  five  hundred  dollars  nor 
more  than  one  thousand  dollars  or  imprisonment  not  less 
than  three  months  nor  more  than  one  year.  The  District 
and  Circuit  Courts  of  the  United  States  were  given  exclu- 
sive jurisdiction  of  offences  against  this  statute.  District 
attorneys,  marshals,  and  deputy  marshals  of  the  United 
States,  and  commissioners  appointed  by  the  Federal  courts 
were  authorized  to  proceed  against  those  violating  the  pro- 
visions of  the  act. 

The  years  between  1865  and  1875  had  witnessed  changes 
in  the  attitude  of  Congress  toward  the  civil  rights  of 
Negroes.  The  Bill  of  1866  was  general  in  its  terms,  yet 
Congress  did  not  feel  secure  till  the  Fourteenth  Amend- 
ment had  been  passed  to  give  validity,  in  a  sense,  to  what 
had  already  been  done.  Now  in  1875  Congress  passed  a 
bill  which  far  surpassed  in  scope  anything  that  had  there- 
tofore been  undertaken.  It  is  surprising  that  the  test  case 
of  its  constitutionality  did  not  reach  the  court  of  last  re- 
sort before  1883.  During  the  year  of  its  passage,  1875, 
doubt  was  thrown  upon  its  validity  by  Judge  Dick  in 
charging  the  grand  jury  of  the  Federal  Circuit  Court  of 
North  Carolina,12  who  said,  in  part:  "Every  man  has  a 
natural  and  inherent  right  of  selecting  his  own  associates, 
and  this  natural  right  cannot  be  properly  regulated  by 
legislative  action,  but  must  always  be  under  the  control  of 
the  individual  taste  or  inclination."  The  same  year,  Judge 
Emmons,  of  the  Circuit  Court  in  Tennessee,13  ruled  that 
the  Fourteenth  Amendment  applied  to  State  and  not  in- 
dividual action,  and  that  the  Federal  government  could 

109 


CIVIL   RIGHTS   OF   NEGROES 

not  require  individual  inn-keepers,  theatre  managers,  etc., 
to  entertain  Negroes. 

The  constitutionality  of  the  Civil  Eights  Bill  of  1875, 
however,  was  finally  settled  in  1883.  That  year  five  cases  14 
reached  the  Supreme  Court,  all  of  which  had  to  do  with 
the  civil  rights  of  Negroes.  Two  of  them  concerned  the 
rights  of  colored  persons  in  inns  and  hotels;  two,  their 
rights  in  theatres;  and  one,  in  railroad  cars.  Mr.  Justice 
Bradley,  delivering  the  opinion  of  the  court,  took  the 
ground  that  the  first  and  second  sections  of  the  Civil 
Eights  Bill  were  unconstitutional  for  these  reasons :  ( 1 ) 
They  are  not  authorized  by  the  Thirteenth  Amendment, 
abolishing  and  prohibiting  slavery,  because  the  separation 
of  the  races  in  public  places  is  not  a  badge  of  servitude. 
"  It  would  be  running  the  slavery  argument  into  the 
ground,"  he  said,  "  to  make  it  apply  to  every  act  of  dis- 
crimination which  a  person  may  see  fit  to  make  as  to  the 
guests  he  will  entertain,  or  as  to  the  people  he  will  take 
into  his  coach,  or  cab,  or  car,  or  admit  to  his  concert  or 
theatre,  or  deal  with  in  other  matters  of  intercourse  or 
business."  (2)  The  Civil  Eights  Bill  is  not  authorized  by 
the  Fourteenth  Amendment,  because  that  refers  to  action 
by  the  State,  while  the  Bill  refers  to  individual  discrim- 
ination. It  is  State  action  of  a  particular  kind  that  is 
prohibited.  "  Individual  invasion  of  individual  rights," 
he  argued,  "  is  not  the  subject  matter  of  the  amendment. 
...  It  nullifies  and  makes  void  all  State  legislation, 
and  State  action  of  every  kind,  which  impairs  the  privileges 
and  immunities  of  citizens  of  the  United  States.  ...  It 
does  not  invest  Congress  with  power  to  legislate  upon  sub- 
jects which  are  within  the  domain  of  State  legislation ;  but 

110 


STATE    LEGISLATION    BETWEEN    1865    AND    1883 

to  provide  modes  of  relief  against  State  legislation  or 
State  action.  ...  It  does  not  authorize  Congress  to  cre- 
ate a  code  of  municipal  laws  for  the  regulation  of  private 
rights,  but  to  provide  modes  of  redress  against  the  opera- 
tion of  State  laws,  and  the  action  of  State  officers,  execu- 
tive or  judicial,  when  these  are  subversive  of  the  funda- 
mental rights  specified  in  the  Amendment  .  .  .  until  some 
State  law  has  been  passed,  or  some  State  action  through 
its  officers  or  agents  has  been  taken,  adverse  to  the  rights 
of  citizens  sought  to  be  protected  by  the  Fourteenth 
Amendment,  no  legislation  of  the  United  States  under 
said  Amendment,  nor  any  proceeding  under  such  legisla- 
tion, can  be  called  into  activity;  for  the  prohibitions  of 
the  Amendment  are  against  State  laws  and  acts  done  under 
State  authority." 

The' effect  of  this  decision  is  that  the  Federal  govern- 
ment cannot  prevent  the  curtailment  of  the  civil  rights 
of  Negroes  by  individuals  unless  such  individuals  are  acting 
under  sanction  of  State  statutes,  and  in  that  case,  the  Fed- 
eral court  can  only  declare  that  the  State  statute  is  un- 
constitutional. 

STATE   LEGISLATION   BETWEEN   1865  AND  1883 

The  Civil  Eights  Bill  of  1875  was  the  last  effort  of 
Congress  to  guarantee  to  Negroes  their  civil  rights.  It 
is  well  now  to  turn  back  in  point  of  time,  and  trace  the 
action  of  the  State  legislatures  on  the  subject.  It  has  been 
deemed  advisable  to  let  the  year  1883  be  the  dividing  point 
in  the  history  of  the  latter  legislation.  Before  that  time 
the  States  were  moving  in  conjunction  with  the  Nation; 

111 


CIVIL    RIGHTS    OF   NEGROES 

after,  the  impotence  of  the  Nation  having  been  declared 
by  its  Supreme  Court,  the  burden  of  defining  and  secur- 
ing civil  rights  to  Negroes  devolved  upon  the  States. 
Moreover,  it  is  well  to  treat  the  Southern  States  and  the 
States  outside  the  South  separately,  because  of  the  abnor- 
mal conditions  in  the  former  occasioned  by  Reconstruction. 

In  States  Outside  of  South 

Between  1865  and  1883  there  was  comparatively  little 
legislation  in  the  Northern,  Eastern,  and  Western  States 
as  to  civil  rights.  This  was  naturally  so  because  these 
States  were  waiting  to  see  what  the  Federal  government 
meant  to  do.  A  brief  examination  of  what  little  legisla- 
tion there  was  will  be  made. 

On  May  16,  1865,  Massachusetts  15  declared  that  there 
should  be  no  distinction,  discrimination,  or  restriction  on 
account  of  color  or  race  in  any  licensed  inn,  public  place 
of  amusement,  public  conveyance,  or  public  meeting,  and 
imposed  a  fine  of  fifty  dollars  for  the  violation  of  this  law. 
The  next  year  it  included  theatres  16  within  the  prohibition, 
but  weakened  the  force  of  the  ^statute  by  saying  that  there 
should  be  no  exclusion  or  restriction  "  except  for  good 
cause." 

The  attitude  of  Delaware  "  toward  civil  rights  is  prob- 
ably the  most  interesting  of  any  of  the  Northern  States. 
On  April  11,  1873,  its  legislature  passed  the  following 
"  joint  resolution  in  opposition  to  making  Negroes  the 
equals  of  white  men,  politically  or  socially  " : 

"  That  the  members  of  this  General  Assembly,  for  the 
people  they  represent,  and  for  themselves,  jointly  and  in- 
dividually, do  hereby  declare  uncompromising  opposition 

112 


STATE   LEGISLATION    BETWEEN    1865    AND    1883 

to  a  proposed  act  of  Congress,  introduced  by  Hon.  Charles 
Sumner  at  the  last  session,  and  now  on  file  in  the  Senate 
of  the  United  States,  known  as  the  '  Supplemental  Civil 
Eights  Bill/  and  all  other  measures  intended  or  calculated 
io  equalize  or  amalgamate  the  Negro  race  with  the  white 
race,  politically  or  socially,  and  especially  do  they  proclaim 
unceasing  opposition  to  making  Negroes  eligible  to  public 
offices,  to  sit  on  juries,  and  to  their  admission  into  public 
schools  where  white  children  attend,  and  to  the  admission 
on  terms  of  equality  with  white  people  in  the  churches, 
public  conveyances,  places  of  amusement,  or  hotels,  and  to 
any  measure  designed  or  having  the  effect  to  promote  the 
equality  of  the  Negro  with  the  white  man  in  any  of  the 
relations  of  life,  or  which  may  possibly  conduce  to  such 
result. 

"  That  our  Senators  in  Congress  be  instructed,  and 
our  Kepresentatives  requested  to  vote  against  and  use  all 
honorable  means  to  defeat  the  passage  by  Congress  of  the 
bill  referred  to  in  the  foregoing  resolution,  known  as  the 
'  Supplemental  Civil  Eights  Bill/  and  all  other  measures 
of  a  kindred  nature,  and  any  and  every  attempt  to  make 
the  Negro  the  peer  of  the  white  man." 

Upon  the  heels  of  this  resolution,  in  1875,  Delaware 18 
enacted  a  statute  on  March  15,  1875,  which  provided  that 
no  keeper  of  an  inn,  tavern,  hotel,  or  restaurant,  or  other 
place  of  public  entertainment  or  refreshment  of  travelers, 
guests,  or  customers,  should  be  obliged  by  law  to  furnish 
entertainment  or  refreshment  to  persons  whose  reception 
or  entertainment  by  him  would  be  offensive  to  the  major 
part  of  his  customers,  or  would  injure  his  business.  The 
term  "  customers  "  was  taken  to  include  all  who  sought 
9  113 


CIVIL    RIGHTS    OF   NEGROES 

entertainment  or  refreshment.  The  proprietor  of  a  theatre 
or  other  public  place  of  amusement  was  not  obliged  to 
receive  into  his  show,  or  admit  into  the  place  where  he  was 
pursuing  his  occupation,  any  person  whose  presence  there 
would  be  offensive  to  the  major  part  of  his  spectators  or 
patrons,  and  thereby  injure  his  business.  Any  carrier  of 
passengers  might  make  such  arrangements  in  his  business 
as  would,  if  necessary,  assign  a  particular  place  in  his  cars, 
carriages,  or  boats,  to  such  of  his  customers  as  he  might 
choose  to  place  there,  and  whose  presence  elsewhere  would 
be  offensive  to  the  major  part  of  the  traveling  public, 
where  his  business  was  conducted ;  but  the  accommodations 
must  be  equal  if  the  same  price  for  carriage  was  required 
of  all.  This  is  still  the  law  in  Delaware.  Taken  in  con- 
nection with  the  joint  resolution  above,  there  is  little  doubt 
that  the  legislature  intended  to  make  possible  the  drawing 
of  a  color  line,  though  it  did  not  expressly  say  so.  It  is 
noteworthy  that,  during  the  stormy  years  of  Keconstruc- 
tion,  some  case  testing  its  constitutionality  did  not  arise. 
Only  one  other  State  has  had  a  statute  anything  like  the 
Delaware  law,  and  that  is  Tennessee,  which  statute  and, 
with  it,  apparently  the  only  case  involving  the  constitution- 
ality of  the  law  that  has  reached  the  courts  will  be  dis- 
cussed later. 

A  Kansas 19  statute  of  April  25, 1874,  which  is  still  law, 
provided  that  there  should  be  no  distinction  on  account  of 
race,  color,  or  previous  condition  of  servitude  in  any  State 
university,  college,  or  other  school  of  public  instruction, 
or  in  any  licensed  inn,  hotel,  boarding  house,  or  any  place 
of  public  entertainment  or  amusement,  or  any  steamboat, 
railroad,  stage  coach,  omnibus,  street  car,  or  any  other 

114 


STATE    LEGISLATION    BETWEEN    1865    AND    1883 

means  of  public  carriage  for  persons  or  freight,  under  pen- 
alty of  a  fine  of  from  ten  to  one  thousand  dollars. 

New  York,20  on  April  9,  1874,  passed  a  Civil  Rights 
Bill  which  prohibited  race  distinctions  in  inns,  public  con- 
veyances on  land  and  water,  theatres,  other  public  places 
of  amusements,  common  schools,  public  institutions  of 
learning,  and  cemeteries.  It  further  declared  that  the  dis- 
crimination against  a  citizen  on  account  of  color,  by  the 
use  of  the  word  "white,"  or  any  other  term,  in  any  law, 
statute,  ordinance,  or  regulation,  should  be  repealed.  In 
1881,  it  specifically  mentioned  hotels,  inns,  taverns,  restau- 
rants, public  conveyances,  theatres,  and  other  places  of 
public  resort  or  amusement.21 

In  South 

One  would  naturally  expect  that  most  of  the  legislation 
in  the  South  guaranteeing  civil  rights  to  Negroes  would 
have  come  during  the  period  that  their  governments  were 
in  the  hands  of  the  Reconstructionists,  and  such  is  the  case. 

In  1866  a  Florida  22  statute  made  it  a  misdemeanor  for 
a  person  of  color  to  intrude  himself  into  any  religious  or 
other  public  assembly  of  white 'persons,  or  into  a  railroad 
car  or  other  public  vehicle  set  apart  for  the  exclusive  ac- 
commodation of  white  people,  or  for  a  white  person  so 
to  intrude  upon  the  accommodations  of  colored  persons. 
By  1873,  however,  the  political  revolution  had  come,  and  a 
statute  23  of  that  year  forbade  discrimination  on  account  of 
race,  color,  or  previous  condition  of  servitude,  in  the  full 
and  equal  enjoyment  of  the  accommodations,  etc.,  of  inns, 
public  conveyances  on  land  and  water,  licensed  theatres, 
other  places  of  public  amusement,  common  schools,  public 

115 


institutions  of  learning,  cemeteries,  and  benevolent  associa- 
tions supported  by  general  taxation.  This  prohibition  did 
not  apply  to  private  schools  or  cemeteries  established  ex- 
clusively for  white  or  colored  persons.  It  added,  as  did 
the  law  of  New  York,  that  there  should  be  no  discrimina- 
tion in  any  laws  by  using  the  word  "  white." 

A  statute  of  Louisiana 24  in  1869  prohibited  any  dis- 
crimination on  account  of  race  or  color  by  common  car- 
riers, innkeepers,  hotel  keepers,  or  keepers  of  public  resorts. 
The  license  of  such  places  had  to  contain  the  stipulation 
that  they  must  be  open  to  all  without  distinction  or  dis- 
crimination on  account  of  color.  The  penalty  was  for- 
feiture of  the  license  and  a  suit  for  damages  by  the  party 
aggrieved.  This  statute25  was  strengthened  in  1873  by 
the  further  provision  that  all  persons,  without  regard  to. 
race  or  color,  must  have  "  equal  and  impartial  accommoda- 
tions "  on  public  conveyances,  in  inns  and  other  places  of 
public  resort.  It  was  the  duty  of  the  attorney-general  to 
bring  suit  in  the  name  of  the  State  to  take  away  the  license 
of  anyone  violating  the  law.  The  statute  imposed  a  fine 
upon  common  carriers  running  from  other  States  into  Lou- 
isiana who  made  any  discrimination  against  citizens  of  the 
latter  on  account  of  race  or  color. 

Arkansas,26  in  1873,  required  the  same  accommodations 
to  be  furnished  to  all  by  common  carriers,  keepers  of  pub- 
lic houses  of  entertainment,  inns,  hotels,  restaurants, 
saloons,  groceries,  dramshops,  or  other  places  where  liquor 
,  was  sold,  public  schools,  and  benevolent  institutions  sup- 
ported in  whole  or  partly  by  general  taxation. 

The  law  of  Tennessee 27  of  1875  is  in  a  very  different 
tone,  it  being  very  much  like,  as  has  been  said  before,  that 

116 


STATE    LEGISLATION    BETWEEN    1865    AND    1883 

of  Delaware.  That  statute  reads :  "  The  rule  of  the  com- 
mon law  giving  a  right  of  action  to  any  person  excluded 
from  any  hotel,  or  public  means  of  transportation,  or  place 
of  amusement,  is  hereby  abrogated ;  and  hereafter  no  keeper 
of  any  hotel,  or  public  house,  or  carrier  of  passengers  for 
hire,  or  conductors,  drivers,  or  employees  of  such  carrier 
or  keeper,  shall  be  bound,  or  under  any  obligation  to  enter- 
tain, carry,  or  admit  any  person,  whom  he  shall  for  any 
reason  whatever,  choose  not  to  entertain,  carry,  or  admit, 
to  his  house,  hotel,  carriage,  or  means  of  transportation 
or  place  of  amusement;  nor  shall  any  right  exist  in  favor 
of  any  such  person  so  refused  admission,  but  the  right  of 
such  keepers  of  hotels  and  public  houses,  carriers  of  pas- 
sengers, arid  keepers  of  places  of  amusement  and  their 
employees  to  control  the  access  and  admission  or  exclusion 
of  persons  to  or  from  their  public  houses,  means  of  trans- 
portation, and  places  of  amusement,  shall  be  as  perfect  and 
complete  as  that  of  any  person  over  his  private  house, 
carriage,  or  private  theatre,  or  place  of  amusement  for 
his  family."  This  Tennessee  law  is  even  more  sweeping 
than  that  of  Delaware.  In  the  latter,  common  carriers 
may  provide  separate  accommodations  for  persons  that 
would  be  disagreeable  to  the  major  portion  of  the  traveling 
public;  in  the  former,  the  common  carrier  might  exclude 
such  persons  altogether.  According  to  the  Tennessee  stat- 
ute, every  railroad  company  in  the  State  had  a  right  to 
refuse  absolutely  to  carry  Negroes  on  its  cars.  Of  course, 
this  has  been  changed  by  its  "  Jim  Crow  "  laws.  The  case 
of  State  v.  Lasater,28  dealing  with  the  second  section  of 
the  Tennessee  statute,  has  the  following  to  say  about  the 
whole  enactment :  "  This  is  an  extraordinary  statute.  It 

117 


CIVIL   RIGHTS    OF   NEGROES 

is  generally  understood  to  have  been  passed  to  avoid  the 
supposed  effects  of  an  act  of  Congress  on  the  same  sub- 
ject, known  as  the  Civil  Eights  Bill/' 

The  constitutionality  of  the  Tennessee  and  Delaware 
statutes  has  not  been  tested,  as  far  as  is  known.  There- 
fore, in  the  absence  of  authority,  an  opinion  on  the  matter 
is  of  little  value,  but  the  following  suggestion  is  ventured : 
Originally,  hotels  and  inns  were  no  more  public  places 
than  a  man's  dwelling,  and  one  could  choose  his  patrons 
just  as  he  could  choose  the  guests  he  would  entertain, 
and  might  exclude  anyone  without  giving  his  reasons  for  it, 
as  a  merchant  might  refuse  to  sell  goods  to  anyone  he 
chose.  For  historical  reasons,  which  need  not  be  discussed 
here,  the  courts  held  that  an  inn-keeper  should  not  be  al- 
lowed to  refuse  an  applicant  for  entertainment  unless  he 
had.  some  valid  reason  for  it.  The  common  law  thereafter 
considered  hotels,  etc.,  public  places.  It  has  been  seen 
that  the  Civil  Eights  Cases  held  that  the  Federal  govern- 
ment cannot  prohibit  a  hotel-keeper  from  refusing  to  re- 
ceive an  applicant,  but  that  the  regulation  of  such  domestic 
relations  is  within  the  exclusive  control  of  the  State.  If 
the  State  sees  fit  to  pass  a  statute  abrogating  the  common 
law,  as  Tennessee  and  Delaware  did,  and  making  hotels, 
etc.,  private  places,  as  they  were  originally,  there  seems 
to  be  no  valid  constitutional  objection.  The  reasoning 
that  applies  to  hotels  will  apply  to  other  places  now  consid- 
ered public,  possibly  even  to  public  conveyances. 

The  following  resolution  of  the  legislature  of  North 
Carolina  29  of  1877  is  worth  quoting  in  full.  It  is  especial- 
ly significant  because  it  was  passed  after  the  Eeconstruc- 
tion  regime  was  over,  and  the  State  government  had  passed 

118 


STATE   LEGISLATION   BETWEEN    1865   AND    1883 

back  into  hands  of  the  Democratic  party,  with  Zebulon  B. 
Vance  as  Governor. 

"  Whereas,  In  the  providence  of  God,  the  colored  people 
have  been  set  free,  and  this  is  their  country  and  their 
home,  as  well  as  that  of  the  white  people,  and  there  should 
be  nothing  to  prevent  the  two  races  from  dwelling  together 
in  the  land  in  harmony  and  peace; 

"  Whereas,  We  recognize  the  duty  of  the  stronger  race 
to  uphold  the  weaker,  and  that  upon  it  rests  the  responsi- 
bility of  an  honest  and  faithful  endeavor  to  raise  the  weaker 
race  to  the  level  of  intelligent  citizenship ;  and 

"  Whereas,  The  colored  people  have  been  erroneously 
taught  that  legislation  under  Democratic  auspices  would 
be  inimical  to  their  rights  and  interests,  thereby  causing  a 
number  of  them  to  entertain  honest  fears  in  the  premises, 

"  The  General  Assembly  of  North  Carolina  do  resolve, 
That,  while  we  regard  with  repugnance  the  absurd  at- 
tempts, by  means  of  '  Civil  Rights '  Bills,  to  eradicate  cer- 
tain race  distinctions,  implanted  by  nature  and  sustained 
by  the  habits  of  forty  centuries ;  and  while  we  are  sure  that 
good  government  demands  for  both  races  alike  that  the 
great  representation  and  executive  offices  of  the  country 
should  be  administered  by  men  of  the  highest  intelligence 
and  best  experience  in  public  affairs,  we  do,  nevertheless, 
heartily  accord  alike  to  every  citizen,  without  distinction 
of  race  or  color,  equality  before  the  law. 

"  Resolved,  That  we  recognize  the  full  purport  and  in- 
tent of  that  amendment  to  the  Constitution  of  the  United 
States  which  confers  the  right  of  suffrage  and  citizenship 
upon  the  people  of  color,  and  that  part  of  the  Constitution 
of  North  Carolina  conferring  educational  privileges  upon 

119 


CIVIL   RIGHTS   OF   NEGROES 

both  races:  that  we  are  disposed  and  determined  to  carry 
out  in  good  faith  these  as  all  other  constitutional  pro- 
visions." 

STATE   LEGISLATION   AFTER    1883 

In  South 

The  civil  rights  legislation  in  the  South  after  1883  may 
be  shortly  disposed  of,  for  an  examination  of  the  session 
laws  of  the  Southern  States  since  that  time  reveals  only 
one  statute  that  can  at  all  properly  be  called  a  Civil  Rights 
Bill.  That  was  a  statute  of  Tennessee 30  of  March  25, 
1885,  providing  against  discrimination  in  theatres,  shows, 
parks,  places  of  public  resort  for  observation  of  scenery 
or  amusement  of  any  kind  whatever,  where  fee  or  toll  is 
charged.  But  it  adds  this  significant  section :  "  That  noth- 
ing herein  contained  shall  be  construed  as  interfering  with 
the  existing  rights  to  provide  separate  accommodations  and 
seats  for  colored  and  white  persons  at  such  places."  It 
may  be  taken  for  granted  that  the  Civil  Eights  Bills  passed 
in  the  South  by  the  Reconstruction  administrations  became 
inoperative,  if  they  were  not  actually  repealed,  as  soon  as 
the  government  reverted  to  the  hands  of  the  resident  white 
people.  Of  course,  all  the  Southern  legislation  as  to  sepa- 
rate schools  and  separate  accommodations  in  public  con- 
veyances relates  to  the  civil  rights  of  Negroes,  and  most 
of  this  has  come  since  1883,  but  the  discussion  of  these 
two  important  subjects  is  postponed  to  later  chapters. 

In  States  Outside  of  South 

The  Federal  Civil  Rights  Bill,  as  has  been  seen,  was 
declared  unconstitutional  in  1883,  and  the  national  gov- 

120 


STATE    LEGISLATION    AFTER    1883 

ernment  was  thereby  declared  impotent  to  secure  for  Ne- 
groes equality  of  accommodations  in  public  places.  Thus 
the  burden,  as  has  been  said  before,  was  thrown  upon  the 
States.  Many  of  the  States  outside  the  South  responded 
by  adopting  bills  which  practically  copied  the  Civil  Rights 
Bill  of  1875.  The  following  is  a  list  of  the  States  that 
have  such  Civil  Rights  Bills  with  the  dates  of  their  adop- 
tion and  amendments:  Connecticut,31  1884  and  1905; 
Iowa,32  1884  and  1892;  New  Jersey,33  1884;  Ohio,34  1884 
and  1894;  Colorado,35  1885  and  1895;  Illinois,36  1885; 
Indiana,37  1885;  Massachusetts,38  1885,  1893,  and  1895; 
Michigan,39  1885;  Minnesota,40  1885,  1897,  and  1899;  Ne- 
braska,41 1885  and  1893;  Rhode  Island,42  1885;  New 
York,43  1893  and  1895;  Pennsylvania,44  1887;  Washing- 
ton,45 1890;  Wisconsin,46  1895;  and  California,47  1897. 
The  Kansas48  bill  has  already  been  considered. 

A  clearer  idea  of  what  the  various  State  statutes  mean 
and  how  they  differ  from  the  Civil  Rights  Bill  of  1875 
may  be  got  from  the  accompanying  table.  The  list  contains 
the  names  of  places  where  all  citizens,  without  regard  to 
race,  color,  or  previous  condition  of  servitude  are  guaran- 
teed equality  of  accommodation.  It  will  be  noticed  that 
none  of  the  Southern  States  have  Civil  Rights  Bills  and, 
therefore,  depend  upon  the  courts  to  determine  the  rights 
of  citizens  in  public  places,  and  in  addition  the  following 
States  have  no  such  statute:  Delaware,  Idaho,  Maine, 
Maryland,  Missouri,  Montana,  Nevada,  New  Hampshire, 
North  Dakota,  Oregon,  South  Dakota,  Utah,  Vermont, 
West  Virginia,  and  Wyoming. 


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PENALTY   FOR   VIOLATING   THE   LAW 

1.  CALIFORNIA  :  Fine  not  less  than  $50. 

2.  COLORADO:    Forfeiture    between    $50    and    $500;    mis- 
demeanor, fine  between  $10  and  $300,  or  imprisonment  not 
over  one  year. 

3.  CONNECTICUT  :  Double  damages  to  person  injured. 

4.  ILLINOIS  :  Forfeiture  between  $25  and  $500 ;  misdemeanor, 
fine  not  over  $500,  or  imprisonment  not  over  one  year. 

5.  INDIANA  :  Forfeiture  not  over  $100 ;  misdemeanor,  fine  not 
over  $100,  or  imprisonment  not  over  thirty  days,  or  both. 

6.  IOWA:  Misdemeanor. 

7.  KANSAS  :  Misdemeanor,  fine  between  $10  and  $1,000,  and 
suit  for  damages. 

8.  MASSACHUSETTS  :  Forfeiture  between  $25  and  $300 ;  mis- 
demeanor, fine  not  over  $300,  or  imprisonment  not  over  one 
year,  or  both. 

9.  MICHIGAN  :  Misdemeanor,  fine  not  over  $100,  or  imprison- 
ment thirty  days,  or  both. 

10.  MINNESOTA:   Forfeiture   of  $500   to   aggrieved   party; 
gross  misdemeanor. 

11.  NEBRASKA:  Misdemeanor,  fine  between  $25  and  $100 
and  costs. 

12.  NEW  JERSEY  :  Forfeiture  of  $500  to  aggrieved  party  and 
costs;  misdemeanor,  fine  between  $500  and  $1,000,  imprison- 
ment between  thirty  days  and  one  year. 

13.  NEW  YORK  :  Forfeiture  between  $100  and  $500  to  ag- 
grieved party;  misdemeanor,  fine  between  $100  and  $500,  im- 
prisonment between  thirty  days  and  ninety  days,  or  both. 

14.  OHIO:  Forfeiture  between  $50  and  $500  to  aggrieved 
party ;  misdemeanor,  fine  between  $50  and  $500,  imprisonment 
between  thirty  days  and  ninety  days. 

15.  PENNSYLVANIA.  :  Misdemeanor,  fine  between  $50  and  $100. 

16.  RHODE  ISLAND  :  Fine  not  over  $100. 

17.  WASHINGTON  :  Misdemeanor,  fine  between  $50  and  $300, 
imprisonment  between  thirty  days  and  six  months. 

18.  WISCONSIN:  Not  less  than  $5  to  aggrieved  party;  fine 
not  over  $100,  or  imprisonment  not  over  six  months. 

123 


CIVIL    RIGHTS    OF   NEGROES 

The  wording  of  all  the  statutes  is  essentially  the  same. 
Each  provides  that  all  citizens  within  the  jurisdiction  of 
the  State,  without  regard  to  race,  color,  or  previous  condi- 
tion of  servitude,  are  entitled  to  the  full  and  equal  accom- 
modations, advantages,  facilities,  and  privileges  of  the 
various  places  mentioned.  The  offending  party  may  be 
either  indicted  and  fined  or  imprisoned,  or  he  may  be 
sued  by  the  aggrieved  party.  In  some  States,  an  action 
by  the  State  is  a  bar  to  an  action  by  the  party  and  vice 
versa.  One  who  aids  or  abets  in  a  discrimination  against  a 
person  on  account  of  race,  color,  or  previous  condition  of 
servitude  is  punished  to  the  same  extent  as  the  one  actually 
committing  the  act. 

Heretofore  only  legislative  enactments,  State  and  Fed- 
eral, as  to  the  civil  rights  of  Negroes  have  been  considered. 
It  is  well  now  to  turn  to  the  courts  to  see  how  the  laws 
have  been  interpreted  as  regards  various  public  places. 


HOTELS 

Only  six  States  expressly  forbid  race  distinctions  in 
hotels.  But  it  may  be  assumed  that  the  sixteen  States 
which  mention  inns  mean  to  include  hotels. 

In  1876  a  Negro  minister  applied  for  a  room  at  a  Phila- 
delphia hotel  and  was  refused  accommodation,  though  one 
of  the  guests  offered  to  share  his  room  with  him.  At  that 
time  there  was  no  law  in  Pennsylvania  requiring  hotel- 
keepers  to  receive  colored  persons ;  but  the  Federal  court  *9 
held  that  the  clerk  might  be  liable  under  the  Federal  Civil 
Rights  Bill  of  1875. 

In  1898  one  Russ  applied  for  a  license  to  open  a  hotel 
124 


HOTELS 

in  Pennsylvania.  In  granting  it,  the  court 50  took  the  occa- 
sion to  express  its  view  on  race  distinctions  in  the  follow- 
ing words :  "  A  sober,  respectable,  and  well-behaved  colored 
man  or  woman  is  entitled  under  the  law  of  Pennsylvania 
to  be  received  in  any  house  of  entertainment  and  be  treated 
in  the  same  manner  as  any  other  guest.  It  is  time  that 
race  discrimination  ceased  in  this  State.  .  .  .  No  one  ob- 
jects any  longer  to  his  [the  Negro's]  presence  in  a  public 
conveyance  or  place  of  entertainment;  thus  far  the  preju- 
dice of  race  has  been  overcome;  it  is  quite  certain  that 
the  objection  to  his  presence  in  a  hotel  or  restaurant  will 
also  pass  away  as  soon  as  his  right  under  the  law  to  be 
there  is  recognized  in  fact  as  it  now  is  by  the  letter  of  the 
statute.  ...  It  would  be  vain  to  deny  that  some  race 
prejudice  still  exists  among  us,  but  the  law  does  not  coun- 
tenance it,  and  good  citizens  should  strive  to  rise  above  it. 
We  trust  the  effort  will  be  made  and  that  toleration  and 
moderation  will  mark  the  conduct  of  both  races." 

In  1896  the  members  of  the  Indiana  University  football 
team  went  to  the  Nutt  House  in  Crawfordsville,  Indiana, 
for  accommodation.  One  of  the  members  of  the  team  was 
a  Negro.  The  clerk  refused  to  take  the  Negro  in  with  the 
rest  of  the  guests,  but  offered  to  let  him  eat  at  the  "  ordi- 
nary." The  Negro,  being  a  minor,  brought  suit  through 
his  next  friend,  and  the  Indiana 51  court  held  that  the  Civil 
Rights  Bill  of  the  State  could  not  be  satisfied  by  separate 
accommodations. 

There  is  no  case  of  race  discrimination  in  the  hotels  of 
Massachusetts  that  has  reached  the  higher  courts,  but  in 
April,  1896,  the  following  resolution 52  was  passed  by  the 
General  Court  of  the  State: 

125 


CIVIL   RIGHTS   OF   NEGROES 

"  Whereas,  On  the  twenty-ninth  day  of  January,  eigh- 
teen ninety-six,  the  Eeverend  Benjamin  W.  Arnett,  D.D., 
of  Wilberforce,  Ohio,  senior  hishop  of  the  African  Meth- 
odist Episcopal  Church,  president  of  the  board  of  trustees 
of  Wilberforce  University,  and  member  of  many  learned 
societies,  was  refused  entertainment  at  certain  reputable 
hotels  in  the  city  of  Boston,  because  he  was  a  colored  man, 
in  spite  of  the  statute  laws  against  discrimination  on  ac- 
count of  color;  therefore, 

"Resolved,  That  the  senate  and  house  of  representa- 
tives of  the  Commonwealth  of  Massachusetts,  in  general 
court  assembled,  successors  of  those  bodies  which  repeatedly 
elected  Charles  Sumner  to  the  Senate  of  the  United  States, 
and  for  four  years  received  messages  from  John  A.  An- 
drew, hereby  express  their  severest  reprobation  of  such 
discrimination  and  their  firm  conviction  of  the  truth  of  the 
clause  of  the  Declaration  of  Independence  wherein  all  men 
are  declared  to  be  created  equal;  and  it  is  further 

"  Resolved,  That  still  more  to  be  reprobated  is  the  sen- 
timent of  any  part  of  the  public  against  any  class  of  our 
fellow  citizens  whereby  such  discrimination  is  rendered 
possible,  and  that  a  vigorous  campaign  for  statute  rights 
by  the  persons  most  aggrieved  will  meet  the  hearty  ap- 
proval and  cooperation  of  the  two  branches  of  the  General 
Court."  This  is  very  significant  as  showing  the  actual 
attitude  of  the  hotels  of  Boston  toward  receiving  Negroes. 
Whether  the  "  vigorous  campaign  "  was  conducted  one  can- 
not tell;  certainly  no  case  appears  to  have  reached  the 
courts.  And  there  is  in  Boston  at  present  a  Negro  hotel. 

The  manager  of  the  Lucerne  Hotel  in  New  York  City 
in  1905,  refused  to  lease  a  suite  to  a  woman  because  she 

126 


RESTAURANTS 

was  a  Jewess.  It  was  a  family  hotel,  containing  small 
suites  like  those  found  in  an  ordinary  apartment  house, 
rented  upon  annual  leases,  transients  not  being  solicited. 
The  New  York  court 53  held  that  it  was  not  a  hotel  in  the 
sense  that  the  manager  must  receive  all  applicants  with- 
out regard  to  race  or  color.  Of  course,  this  case  did  not 
concern  the  Negro,  but  the  same  principle  is  involved. 

/ 

RESTAURANTS 

Eace  discrimination  in  restaurants  is  prohibited  by  thir-. 
teen  States ;  in  taverns,  by  one ;  in  eating-houses,  by  eleven ; 
in  boarding-houses,  by  one;  in  cafes,  by  one;  in  chop- 
houses,  by  one ;  and  at  lunch-counters,  by  one.  These  will 
be  considered  under  the  general  head  of  restaurants. 

In  1881  a  Negro  was  refused  accommodation  in  a  res- 
taurant in  New  York.  At  that  time  the  laws  of  the  State 
prohibited  discrimination  in  inns.  The  restaurant-keeper 
argued  as  a  defence  in  the  suit  that  followed  that  the  res- 
taurant was  not  included  in  the  term  "  inns."  The  court 54 
held  that  the  legislature  meant  by  "  inn  "  a  place  that  fur- 
nished both  lodging  and  food  to  guests,  that  "  restaurant " 
had  no  fixed  legal  meaning,  and  that  the  declaration  was 
sufficient  if  it  said  "  inn  "  and  then  explained  it  by  calling 
it  a  restaurant. 

A  Negro  went  to  a  restaurant  in  Detroit  in  1887  and 
asked  for  accommodation.  The  clerk  told  him  that  he 
could  not  be  served  on  the  restaurant  side,  but  that  he 
would  be  served  if  he  went  over  on  the  saloon  side.  The 
colored  man  complained  to  the  proprietor  and  was  told 
that  it  was  the  rule  of  the  house  not  to  serve  Negroes  in 

127 


CIVIL   RIGHTS   OF   NEGROES 

the  restaurant  room.  The  statute  of  Michigan  required 
full  and  equal  accommodation  in  restaurants.  The  court 55 
held  that  the  statute  would  not  be  satisfied  if  the  Negro 
were  given  as  good  accommodations  but  in  a  different 
room,  saying :  "  In  Michigan  there  must  be  and  is  an  ab- 
solute, unconditional  equality  of  white  and  colored  men 
before  the  law.  .  .  .  Whatever  right  a  white  man  has  in  a 
public  place,  the  black  man  has  also." 

In  1897  a  colored  man  went  into  a  restaurant  in  Mil- 
waukee, Wisconsin.  After  sitting  at  the  table  forty  min- 
•utes  without  having  his  order  taken,  he  complained,  and 
was  told  that  he  was  not  served  because  he  was  colored. 
He  left,  and  later  brought  suit.  At  the  trial,  it  appeared 
that  the  discrimination  was  not  with  the  sanction  of  the 
proprietor,  that  he  had  told  the  waiter  to  serve  Negroes, 
that  the  waiter  had  refused  to  do  so  and  was  discharged 
therefor.  Nevertheless,  the  court 56  held  that  the  proprie- 
tor was  liable  for  the  act  of  his  servant,  and  gave  com- 
pensatory damages  to  the  Negro. 

The  next  year,  a  restaurant  keeper  refused  to  accom- 
modate a  Negro  in  Lucas  County,  Ohio,  and  the  court57 
allowed  the  Negro  to  recover  the  penalty  prescribed  by  the 
law.  The  case  was  decided  on  a  question  of  evidence. 

In  1905  a  Negro  was  serving  on  the  jury  in  a  civil  case 
in  Iowa.  The  bailiff  had  arranged  with  a  boarding-house 
to  serve  meals.  When  the  Negro,  along  with  the  other 
jurors,  went  for  his  meals,  the  boarding-house  keeper  re- 
fused to  allow  him  to  sit  at  the  same  table  with  the  others. 
It  was  not  questioned  that  this  was  in  violation  of  the 
Civil  Rights  Bill  of  the  State  if  the  boarding-house  was 
an  "eating-house"  within  the  terms  of  the  statute.  The 

128 


BARBER-SHOPS 

court58  charged  the  jury  that  such  an  eating-house  as 
would  come  within  the  statute  must  be  a  place  where  meals 
are  served  to  anyone  applying  at  the  same  prices  charged 
to  all,  but  that,  if  meals  are  served  only  in  pursuance  of  a 
previous  arrangement  for  particular  individuals,  rather 
than  anyone  who  may  apply,  it  is  a  private  boarding-house 
and  not  within  the  statute. 


BARBER-SHOPS 

Thirteen  States  provide  that  barbers  must  serve  all 
persons  without  regard  to  race  or  color. 

In  1889  a  barber  in  Lincoln,  Nebraska,  refused  to  shave 
a  Negro  because  he  was  "  colored."  The  Civil  Rights  Bill 
of  that  State  mentions  barbers.  The  court 59  held :  "  A 
barber,  by  opening  a  shop  and  putting  out  his  sign,  thereby 
invites  every  orderly  and  well-behaved  person  who  may  de- 
sire his  services  to  enter  his  shop  during  business  hours. 
The  statute  will  not  permit  him  to  say  to  one,  you  were 
a  slave  or  the  son  of  a  slave,  therefore  I  will  not  shave 
you.  Such  prejudices  are  unworthy  of  our  better  manhood, 
and  are  clearly  prohibited  by  the  statute."  Barber-shops 
were  included  within  the  provisions  of  the  Massachusetts 
Civil  Rights  Bill  in  1893,  but,  as  a  matter  of  fact,  Negroes 
are  not  even  now  given  the  same  accommodations  as  whites 
in  barber-shops  in  Massachusetts. 

The  statute  of  Connecticut  requires  equality  of  service 
in  "places  of  public  accommodation."  A  barber  refused 
to  serve  one  Faulkner  because  he  was  a  Negro,  and  the  lat- 
ter brought  suit  on  the  ground  that  a  barber-shop  is  a  place 
of  public  accommodation  and,  hence,  within  the  Civil 
10  129 


CIVIL    RIGHTS    OF    NEGROES 

Eights  Bill  of  the  State.  The  court 60  held  that  the  barber- 
shop is  not,  in  its  nature,  different  from  the  places  of 
business  run  for  private  gain,  and  that  the  common  law 
has  never  recognized  it  as  possessing  the  quality  of  a  place 
of  public  accommodation,  as  a  hotel,  public  conveyance, 
etc. 

It  may  be  added  here  that  most  of  the  cases  have  in- 
volved the  point  as  to  what  are  places  of  public  accommo- 
dation or  amusement  or  resort.  If  the  place  is  mentioned 
in  the  Civil  Rights  Bill,  it  is,  of  course,  within  the  pro- 
hibition, and  it  is  a  violation  of  the  statute  even  to  require 
separate  accommodations,  although  equal  in  every  other 
respect.  But  a  vast  deal  of  litigation  has  arisen  out  of 
instances  of  Negroes  being  denied  accommodation  in  places 
considered  public  in  their  nature  but  which  are  not  men- 
tioned in  the  Civil  Rights  Bill  of  the  State  wherein  the  case 
arises. 

BOOTBLACK   STANDS 

In  the  year  1901,  Basso,  a  bootblack  in  the  basement  of 
one  of  the  business  houses  of  Rochester,  New  York,  refused 
to  serve  Burks  because  the  latter  was  a  Negro.  The  law 
of  New  York,  as  has  been  seen,  requires  full  and  equal 
accommodations  in  hotels  and  "other  places  of  public  ac- 
commodation." The  question,  therefore,  was:  Is  a  boot- 
black stand  a  place  of  "  public  accommodation  "  ?  The  mu- 
nicipal court  of  Rochester,  in  which  Burks  brought  suit, 
gave  judgment  for  him,  thereby  answering  the  question 
in  the  affirmative.  The  county  court  reversed  the  decision. 
The  appellate  division  reversed  the  county  court  and  sus- 
tained the  municipal.  The  court  of  appeals  61  reversed  the 

130 


BILLIARD-ROOMS 

appellate  division  thereby  sustaining  the  county  court,  say- 
ing :  "  A  bootblacking  stand  may  be  said  to  be  a  place 
of  public  accommodation,  like  the  store  of  a  dry  goods  mer- 
chant, a  grocer,  or  the  proverbial  '  butcher,  baker,  and 
candlestick  maker ' ;  but  that  is  very  far  from  placing  it 
in  the  same  category  with  the  places  specifically  named  in 
the  statute.  Inns,  hotels,  and  public  conveyances  are  places 
of  public  accommodation  in  the  broadest  sense,  because 
they  have  always  been  denominated  as  such  under  the  com- 
mon law.  Bath-houses  and  barber-shops  are  not  to  be  re- 
garded as  included  within  the  statute  under  the  general 
phrase,  l  and  all  other  places  of  public  accommodation.' 
There  is  no  more  relation  between  a  bootblacking  stand  and 
a  public  conveyance  than  there  is  between  a  theatre  or 
music-hall  and  a  bath-house  or  barber-shop.  There  is,  it 
is  true,  a  superficial  resemblance  between  the  occupation  of 
the  barber  and  that  of  the  bootblack,  in  the  sense  that  both 
minister  to  the  personal  comfort  and  convenience  of  others ; 
but  the  same  argument  could  be  extended  far  beyond  the 
limits  necessary  to  demonstrate  that  not  '  all  other  places 
of  public  accommodation '  are  included  by  relation  within 
the  category  of  the  things  specifically  enumerated  in  the 
statute." 

BILLIARD-ROOMS 

In  Massachusetts  in  1866,  a  certain  Negro  was  refused, 
because  of  his  race  or  color,  the  use  of  a  billiard-room.  At 
that  time  a  statute  of  the  Commonwealth  required  equal 
accommodation  in  public  places  of  amusement.  The  Su- 
preme Court 62  of  Massachusetts,  in  which  the  Negro's  case 
was  finally  heard,  held  that  there  was  no  proof  that  the 

131 


CIVIL   RIGHTS   OF   NEGROES 

room  was  licensed,  and  added :  "  It  cannot  be  supposed  that 
it  was  the  intent  of  the  legislature  to  prescribe  the  manner 
in  which  persons  should  use  their  own  premises  or  permit 
others  to  use  them,  if  they  did  not  carry  on  therein  an 
occupation  or  business,  or  suffer  other  persons  to  appropri- 
ate them  to  a  purpose,  which  required  a  license  in  order  to 
render  such  an  appropriation  lawful." 

SALOONS 

Only  two  States,  Minnesota  and  Wisconsin,  mention 
saloons  in  their  Civil  Rights  Bills.  And  in  Minnesota,  they 
were  not  added  till  1899,  as  a  result  of  the  following  case : 
A  Negro  was  denied  accommodation  in  a  saloon.  At  that 
time,  the  statute  required  equal  accommodations  in  inns 
and  "places  of  public  resort,  refreshment,  accommoda- 
tion, or  entertainment."  The  court 63  of  that  State,  in 
passing  on  the  case,  held  that  a  saloon  is  not  among  the 
other  "  places  of  public  refreshment."  The  court  suggests 
that  "  or  other  "  means  "  other  such  like "  and  includes 
only  places  of  the  same  nature  as  those  already  mentioned 
specifically  in  the  statute.  About  the  Negro,  the  court 
said :  "  It  is  a  well-known  fact  that,  owing  to  an  unrea- 
sonable race  prejudice  which  still  exists  to  some  extent, 
the  promiscuous  entertainment  of  persons  of  different 
races  in  places  where  intoxicating  drink  are  sold  not  in- 
frequently result  in  personal  conflicts,  especially  when  the 
passions  of  men  are  inflamed  by  liquor.  Hence  the  legis- 
lature might  have  omitted  saloons  for  that  reason."  The 
next  year  the  legislature  answered  otherwise  by  adding 
saloons  to  the  Civil  Rights  Bill. 

132 


SODA    FOUNTAINS 

In  1899  a  bar-keeper  in  Ohio  charged  a  Negro  thirty 
cents  for  a  cocktail,  the  regular  price  to  white  customers 
being  only  fifteen  cents.  The  Civil  Eights  Bill  of  Ohio 
did  Dot  mention  saloons,  but  said  "  other  places  of  public 
accommodation  and  amusement."  The  court64  held  that 
saloons  were  not  included,  adding,  in  the  same  spirit  as 
the  Minnesota  court :  " .  .  .  nor  should  we  interpret  this 
statute  as  encouraging  a  tariff  which  the  clearly  defined 
policy  of  the  State  discourages." 

A  statute  of  Louisiana  65  of  1908  requires  separate  sa- 
loons for  white  and  colored  persons.  The  Louisiana  court,66 
in  July,  1909,  held  that  the  sale  of  liquor  to  white  and 
colored  persons  must  not  be  conducted  in  the  same  building, 
and  that  the  statute  is  not  obeyed  by  providing  separate 
bars  in  the  same  building.  The  saloon  keeper  had  at- 
tempted to  avoid  paying  taxes  on  two  saloons  by  operating 
two  bars  in  the  same  building. 

In  Atlanta,67  before  State  prohibition  began,  there  were 
separate  saloons  for  the  white  and  colored  people.  An  or- 
dinance of  Nashville,68  Tennessee,  which  went  into  effect 
July  7,  1907,  required  the  segregation  of  the  races  in  sa- 
loons. 

SODA  FOUNTAINS 

The  keeper  of  a  soda  fountain  in  Illinois  in  1896  re- 
fused to  sell  cold  drinks  to  a  Negro.  At  that  time  the 
law  required  equal  accommodation  in  inns  and  "  all 
other  places  of  accommodation  and  amusement."  The 
court 69  of  that  State  held  that  a  soda  fountain  is  not  such 
a  place  of  accommodation  or  amusement.  "  Such  a  place," 
the  court  argued,  "  can  be  considered  a  place  of  accommo- 

133 


CIVIL   RIGHTS    OF   NEGROES 

dation  or  amusement  to  no  greater  extent  than  a  places 
where  dry  goods  or  clothing,  boots  and  shoes,  hats  and 
caps,  or  groceries,  are  dispensed.  The  personal  liberty  of 
an  individual  in  his  business  transactions,  and  his  freedom 
from  restrictions,  is  a  question  of  utmost  moment,  and 
no  construction  can  be  adopted  by  which  an  individual 
right  of  action  will  be  included  as  controlled  within  a 
legislative  enactment,  unless  clearly  expressed  in  such  en- 
actment and  certainly  included  within  the  constitutional 
limitation  on  the  power  of  the  legislature." 


THEATRES 

The  question  of  the  rights  of  Negroes  in  theatres  has 
given  rise  to  a  number  of  judicial  decisions.  Fifteen  States 
provide  by  statute  that  there  shall  be  no  race  distinction 
in  theatres.  In  1873,  the  laws  of  Mississippi,  under  the 
Eeconstruction  government,  declared  that  all  persons,  with- 
out distinction  as  to  race,  color,  or  previous  condition  of 
servitude,  should  have  equal  and  impartial  enjoyment  of 
theatres.  One  Donnell,  held  in  custody  for  refusing  to 
pay  a  fine  for  violating  this  law  by  refusing  to  sell  thea- 
tre tickets  to  two  Negroes,  petitioned  for  a  writ  of  habeas 
corpus.  The  court 70  held  that  the  law  was  not  unconstitu- 
tional, because  it  in  no  way  appropriated  private  property 
to  public  use. 

Two  years  later,  in  reply  to  a  question  whether  it  was 
a  crime  to  refuse  a  Negro  equal  accommodations  in  a  hotel, 
Judge  Emmons  in  Tennessee  charged  the  grand  jury 71  that 
the  Federal  government  had  no  right  to  require  individual 
innkeepers,  theatre  managers,  etc.,  to  entertain  Negroes. 

134 


THEATRES 

In  1876  a  Negro  in  Louisiana  bought  a  ticket  to  a  thea- 
tre, which  he  was  not  allowed  to  use  on  account  of  his 
color.  He  sued  for  five  thousand  dollars  damages.  The 
Constitution  of  that  State,  at  the  time,  guaranteed  equal 
accommodations  in  public  places.  The  Louisiana  court72 
held  that  this  law  "  does  not  enumerate  a  mere  abstrac- 
tion, but  it  guarantees  substantial  rights."  The  Negro's 
claim  was  sustained,  but  the  damages  were  reduced  to  three 
hundred  dollars  and  costs.  Both  this  and  the  Mississippi 
case  arose  in  the  South  and  were  decided  favorably  to  the 
rights  of  the  Negro,  but  both  came  during  the  Reconstruc- 
tion regime.  Since  then,  no  such  case  appears  to  have  risen 
in  the  South. 

In  1889  a  Negro  woman  in  Illinois,  having  been  re- 
fused tickets  to  a  theatre,  had  a  white  man  buy  them 
for  herself  and  her  husband.  On  presenting  the  tickets 
they  were  refused  admission  to  seats  in  the  theatre  which 
the  tickets  called  for.  At  the  resulting  trial,  the  proprie- 
tor offered  to  prove  that  he  had,  "  in  order  to  avoid  collision 
between  the  races,  adopted  a  rule  (and  that  such  rule  was 
necessary)  to  the  effect  that  the  colored  people  should  have 
one  row  to  themselves  in  each  part  of  the  house,  or  as  many 
rows  as  the  tickets  which  they  bought  would  call  for." 
This  evidence  was  rejected,  the  court73  holding  that  the 
Civil  Rights  Bill  of  Illinois  could  not  be  satisfied  by  sep- 
arate accommodations. 

Missouri  has  no  Civil  Rights  Bill.  A  Negro,  mistaken 
for  a  white  man  by  the  clerk  in  the  box-office,  bought  tick- 
ets for  seats  in  the  orchestra  of  a  Kansas  City  theatre. 
When  he  presented  his  tickets  to  the  usher  he  was  refused 
the  seats  called  for,  but  was  offered  in  exchange  balcony 

135 


CIVIL   RIGHTS   OF   NEGROES 

seats  reserved  for  Negroes.  The  court 74  before  which  the 
case  was  tried  held  that  the  rule  of  the  theatre  requiring 
separate  accommodations  for  the  races  was  not  a  violation 
of  the  Fourteenth  Amendment. 

The  most  recent  case 75  appears  to  be  a  1905  case  in 
New  York  in  which  a  Negro  was  ejected  from  a  theatre 
by  an  employee.  The  proprietor  was  permitted  to  show 
that  the  ejectment  was  done  while  he  was  away  and  con- 
trary to  his  orders,  and  that  he  permitted  Negroes  to  enjoy 
the  privileges  of  the  place.  A  verdict  was  thereupon  found 
for  him,  but  the  case  was  remanded  by  the  appellate  court 
for  a  new  trial,  on  the  ground  that  the  evidence  was  im- 
properly admitted. 

SKATING   RINKS 

California,  Illinois,  and  Massachusetts  have  considered 
skating  rinks  of  enough  importance  to  include  them  in 
their  Civil  Eights  Bills.  In  1885  the  keeper  of  a  skating 
rink  in  Iowa  refused  to  let  a  Negro  use  it,  and  the  Negro 
brought  suit.  The  court76  held  that  the  exclusion  of  a 
colored  man  from  a  skating  rink  not  licensed  is  not  illegal. 
The  New  York  court 77  has  held  that  a  skating  rink  is 
a  "  place  of  public  amusement "  within  the  meaning  of 
the  statute,  so  that  a  keeper  of  one  cannot  refuse  admis- 
sion to  a  Negro. 

CEMETERIES 

The  early  Civil  Eights  Bills  of  New  York,  Florida,  and 
Kansas  prohibited  race  distinctions  in  public  cemeteries. 
This  stipulation,  however,  does  not  appear  in  the  present 
statutes  of  any  of  the  States,  except  Kansas.  Eace  dis- 

136 


CEMETERIES 

tinctions  in  cemeteries  are  common.  The  legislature  of 
Mississippi 78  of  1900,  for  instance,  gave  the  Ladies'  Aux- 
iliary Cemetery  Association,  an  organization  of  white 
women,  permission  to  remove  the  monument  and  remains 
of  the  Negro  State  Secretary  of  State,  James  Lynch,  from 
the  white  to  the  Negro  cemetery  in  Jackson,  Mississippi, 
provided  it  was  done  without  expense  to  the  State. 

The  Ealeigh,  N.  C.,  News  and  Observer  of  February 
20,  1906,  quotes  the  Germantown,  Pa.,  Guide  as  calling 
on  the  people  to  provide  a  cemetery  where  Negroes  may 
be  buried,  saying  that  "unless  something  is  done,  the 
bodies  of  the  colored  poor  will  be  denied  the  right  of  decent 
burial,  for  their  disposal,  of  necessity,  will  be  by  means 
of  the  dissecting  rooms  of  anatomical  boards." 

The  Civil  Eights  Bills  of  the  eighteen  States  have  now 
been  analyzed,  and  the  judicial  decisions  arising  therefrom 
have  been  considered.  It  is  noticeable  that,  if  one  excepts 
the  theatre  cases  of  the  Reconstruction  period,  not  a  case 
has  come  from  a  Southern  State.  The  explanation  must  be 
that  those  States  have  never  undertaken  to  require  hotel- 
keepers,  etc.,  to  offer  accommodations  without  regard  to 
color :  the  Negroes  have  taken  for  granted  that  they  would 
not  be  admitted  to  such  places,  except  upon  condition  that 
they  would  accept  the  accommodations  set  apart  for  their 
race,  and  consequently  have  not  applied  for  admission  upon 
any  other  terms.  In  the  other  States  the  courts  have,  as 
a  rule,  interpreted  the  Civil  Rights  Bills  very  strictly.  If 
a  place  is  not  specifically  mentioned  in  the  statute,  courts 
have  been  very  slow  to  include  it  under  the  general  head 
of  "  other  places  of  amusement  or  accommodation."  In 

137 


CIVIL   RIGHTS    OF   NEGROES 

other  words,  this  phrase,  which  is,  in  substance,  tacked  on 
to  every  statute,  is  a  dead  letter.  The  courts  are  chary, 
as  they  should  be,  of  invading  individual  liberty  and  free- 
dom of  business.  But  if  a  place  is  specifically  mentioned 
in  the  statute,  the  law  is  not  satisfied  by  offering  separate 
accommodations  to  Negroes,  even  though  such  accommoda- 
tions are  equal  for  both  races  in  every  respect;  they  must 
be  identical. 


RACE   DISCRIMINATION    BY   INSURANCE    COMPANIES 

Some  allied  topics  may  be  properly  discussed  under  the 
general  head  of  civil  rights. 

Five  States — Connecticut,79  Massachusetts,80  Ohio,81 
New  York,82  and  Michigan,83 — have  deemed  it  necessary 
to  pass  laws  prohibiting  any  discrimination  on  account  of 
race  or  color  by  life  insurance  companies.  All  of  the  stat- 
utes are  essentially  the  same.  They  declare  that  no  life 
insurance  company  shall  make  any  distinction  or  discrim- 
ination between  white  and  colored  persons  wholly  or  partly 
of  African  descent,  as  to  premiums  or  rates  charged  for 
policies ;  nor  shall  such  company  demand  higher  premiums 
from  colored  persons  than  from  whites  of  the  same  age, 
sex,  general  condition  of  health,  and  hope  of  longevity; 
nor  shall  it  make  or  require  any  rebate,  diminution,  or  dis- 
count upon  the  sum  to  be  paid  on  the  policy  in  case  of  the 
death  of  the  colored  person.  Such  a  company  is  forbidden 
to  add  any  stipulation  by  which  the  insured  binds  himself, 
his  heirs,  executors,  assigns,  etc.,  to  accept  any  sum  less 
than  the  face  value  of  the  policy.  Massachusetts  provides 
that  if  a  company  refuses  to  insure  a  colored  person  making 

138 


RACE    DISCRIMINATION    BY    INSURANCE    COMPANIES 

application,  it  must,  upon  his  request,  give  him  a  certifi- 
cate of  the  regular  examining  physician,  saying  that  the 
refusal  was  not  because  the  applicant  is  a  person  of  color, 
but  solely  upon  the  grounds  of  general  health  and  prospect 
of  longevity  as  would  be  applicable  to  white  persons  of  the 
same  age  and  sex. 

The  Connecticut  statute  enacts  that  any  condition  or 
stipulation  in  the  policy,  inserted  because  of  the  color  or 
race  of  the  insured,  shall  be  void.  Ohio  provides  that  any 
corporation,  or  officer  or  agent  of  such  corporation,  violat- 
ing the  provisions  of  its  statute,  shall  be  fined  for  each 
offence  not  less  than  one  hundred  dollars  nor  more  than 
two  hundred  dollars,  but  that  nothing  in  the  act  shall  be 
construed  as  to  require  any  agent  or  company  to  take  or 
receive  the  application  for  insurance  of  any  person.  New 
York  makes  the  violation  of  the  law  a  misdemeanor  pun- 
ishable by  a  fine  of  from  fifty  dollars  to  five  hundred  dol- 
lars. Michigan  goes  a  step  further  and  declares  that  any- 
one violating  the  law  shall  forfeit  to  the  State  five  hun- 
dred dollars,  to  be  recovered  by  the  attorney  general,  and 
that  any  officer  or  agent  who  violates  it  shall  be  guilty  of 
a  misdemeanor  and  punished  by  imprisonment  in  the 
county  jail  not  over  one  year  or  by  a  fine  of  from  fifty  dol- 
lars to  five  hundred  dollars,  or  both. 

There  must  have  been  instances  of  discrimination  by 
life  insurance  companies  against  Negroes,  else  these  States 
would  not  have  thought  it  necessary  to  enact  such  statutes. 
The  explanation  of  this  discrimination  is  probably  not  so 
much  race  prejudice  as  the  general  belief,  based  upon  sta- 
tistics, that  the  Negro,  particularly  in  the  colder  climate 
of  the  North  and  West,  has  not  the  same  hope  of  longevity 

139 


CIVIL    RIGHTS    OF   NEGROES 

as  the  white  man,  being  more  subject  to  pulmonary  and 
other  mortal  diseases.  If  the  risk  of  mortality  of  the 
Negro  is  greater,  the  insurance  company  argued  that  it 
was  justified  in  seeking  compensation  for  assuming  this 
increased  risk  by  charging  a  higher  premium.  No  case 
has  been  found  arising  under  these  statutes. 


RACE   DISCRIMINATIONS   BY    LABOR   UNIONS 

The  attitude  of  labor  organizations  toward  Negroes  has 
of  late  been  the  subject  of  much  comment,  especially  by  the 
Negroes  themselves,  who  complain  that  the}*  are  handi- 
capped in  the  struggle  for  existence  because  of  the  hos- 
tility of  such  organizations.  Mr.  Baker,84  speaking  of  the 
North,  said :  "  And  yet,  although  I  expected  to  find  the 
Negro  wholly  ostracised  by  union  labor,  I  discovered  that 
where  the  Negro  becomes  numerous  or  skilful  enough,  he, 
like  the  Italian  or  Eussian  Jew,  begins  to  force  his  way 
into  the  unions.  .  .  .  They  have  got  in,  ...  not  be- 
cause they  are  wanted,  or  because  they  are  liked,  but  be- 
cause, by  being  prepared,  skilled,  and  energetic,  the  unions 
have  had  to  take  them  in  as  a  matter  of  self-protection. 
...  In  several  great  industries  North  and  South,  indeed, 
the  Negro  is  as  much  a  part  of  labor  unionism  as  the  white 
man."  There  seems  to  be  more  opposition  to  Negroes 
joining  the  unions  of  Philadelphia  than  most  Northern 
cities.85 

One  would  expect  to  find,  where  the  conflict  between 
white  and  colored  laborers  exists,  some  evidence  of  it  in 
statutes  or  court  reports.  But  this  resolution  of  the  Gen- 
eral Court  of  Massachusetts,86  passed  in  190-1,  is  the  only 

140 


CHURCHES 

trace  that  has  been  found :  "  Whereas,  the  national  league 
of  American  wheelmen,  at  their  convention  held  in  Louis- 
ville, Kentucky,  on  the  twentieth  day  of  February,  in  the 
present  year,  voted  to  exclude  colored  persons  from  mem- 
bership in  said  organization,  which  exclusion  affects  the 
members  of  the  organization  resident  in  Massachusetts; 
Resolved,  That  the  General  Court  deprecates  the  action  of 
the  organization  above  referred  to,  and  regards  the  enforce- 
ment of  discriminations  of  this  character  as  a  revival  of 
baseless  and  obsolete  prejudices." 

CHURCHES 

Colorado  is  the  only  State  that  has  undertaken  by  legis- 
lation to  guarantee  to  Negroes  full  and  equal  accommoda- 
tions in  churches.  The  rest  have  left  it  to  the  churches 
themselves  to  decide, the  matter. 

It  is  generally  known  that  during  slavery  the  Negroes, 
for  the  most  part,  attended  the  white  churches,  where 
galleries  were  set  apart  for  them,  were  members  thereof, 
and  were  served  by  white  ministers.  After  Emancipation, 
the  Negroes  withdrew  from  the  white  churches  and  built 
places  of  worship  of  their  own.  To-day,  in  all  parts  of  the 
country,  where  Negroes  live  in  considerable  numbers,  they 
have  their  own  churches.  In  such  cities  as  Boston,  where 
the  doors  of  all  churches  are  in  theory  open  to  every  race, 
Negro  churches  are  found  in  the  Negro  districts. 

Although  there  is  practically  race  separation  in  the 
churches  of  the  whole  country,  all  the  difficulties  have  not 
been  solved.  In  1903,  the  Freedman's  Aid  and  Southern 
Educational  Society,  an  organization  of  the  bishops  of  the 

141 


CIVIL   RIGHTS    OF   NEGROES 

Methodist  Episcopal  Church,  general  secretaries  of  the 
church  department,  and  leading  laymen,  met  in  session 
in  Lincoln,  Nebraska.  Inasmuch  as  the  purpose  of  this 
body  was  to  devise  and  discuss  means  of  improving  the 
educational  opportunities  of  the  Southern  Negroes,  the 
churchmen  of  that  race  were  present  in  good  numbers. 
Some  of  the  hotels  in  the  city  gave  notice  that  they  could 
not  allow  the  colored  delegates  to  eat  in  the  main  dining 
rooms,  but  that  they  could  furnish  them  sleeping  accommo- 
dations and  serve  them  meals  in  their  apartments.87  It  is 
along  this  line  that  the  difficulty  usually  comes. 

The  Baptist  denomination  recently  organized  the  Gen- 
eral Baptist  Convention  of  America,  which  held  its  first 
meeting  in  St.  Louis  in  1905.  The  next  meeting  was  to 
have  been  in  Louisville,  Kentucky,  May  5  and  16,  1906. 
The  executive  committee  of  the  convention  postponed  the 
meeting  for  a  year,  assigning  as  their  reason,  or  one  of  their 
reasons,  the  fact  that  they  experienced  difficulty  in  secur- 
ing a  church  in  which  to  hold  the  convention,  the  white 
Baptists  being  averse  to  having  the  colored  members  of  the 
denomination  assemble  with  them.  It  was  arranged  later 
that  the  whites  and  Negroes  should  meet  in  the  same  edi- 
fice, but  that  the  Negroes  should  be  restricted  to  the  use  of 
the  balconies.  This,  however,  was  resented  by  the  Negroes.88 

The  Presbyterian  Church  also  has  had  to  face  the  race 
problem.  In  its  general  assembly  at  Des  Moines,  Iowa,  in 
1906,  the  committee  on  church  policies  recommended  the 
erection  of  a  synod  in  Alabama  to  include  the  presbyteries 
of  Birmingham,  Levere,  and  Rogersville,  which  are  com- 
posed of  colored  churches.  They  had  hitherto  been  in- 
cluded in  the  synod  of  Tennessee.  The  report  provoked 

142 


CHURCHES 

such  a  discussion  that  it  was  carried  over  to  the  next  meet- 
ing, and  no  subsequent  account  has  appeared.89  At  the  gen- 
eral assembly  of  1908,  held  in  Pittsburg,  Pennsylvania,  the 
question  arose  again  out  of  a  report  of  the  Board  of  Freed- 
men's  Missions,  some  of  the  members  from  the  North  re- 
senting such  a  separation  in  the  missionary  efforts.90 

The  Episcopal  Church  has  probably  had  the  most  diffi- 
culty with  the  race  problem.  This  Church  has  had  no  sep- 
arate organization  for  Negroes.  Both  races  meet  together 
in  the  annual  diocese  conventions,  without  distinction,  and 
participate  in  the  business  of  the  Church.  At  one  of  these 
conventions,  held  at  Tarboro,  North  Carolina,  in  1907,  the 
following  resolution  was  passed :  "  That  the  time  has  come 
when  the  welfare  of  both  races  in  the  Southern  States  re- 
quires that  each  race  should  have  its  own  ecclesiastical 
legislative  assemblies,  and  that  we  urge  the  General  Con- 
vention to  take  immediate  action."  The  colored  clergy  and 
congregations  had  already  expressed  their  willingness  to 
submit  the  whole  matter  to  the  general  convention.  In 
speaking  for  separation,  Bishop  Cheshire,  of  North  Caro- 
lina, said :  "  I  have  come  to  this  conclusion  in  spite  of  the 
sentiments  and  convictions  of  a  life-time,  and  though  my 
mind  and  conscience  compel  my  assent  to  this  necessity, 
my  heart  still  clings  to  the  old  ideal  of  a  church  and  a 
diocese  which  in  its  annual  gatherings  should  represent  vis- 
ibly the  oneness  of  all  races  and  colors  in  Christ.  .  .  .  We 
must  confront  the  actual  facts  of  the  day.  I  believe  that, 
in  one  way  or  another,  both  the  white  race  and  the  colored 
race,  consciously  or  unconsciously,  demand  a  different  ar- 
rangement of  our  ecclesiastical  institutions.  I  believe  that 
some  separate  organization  for  our  colored  work  is  coming 

143 


CIVIL   RIGHTS   OF   NEGROES 

in  the  near  future."  01  At  the  general  convention,  which 
met  in  Richmond,  Virginia,  in  October,  1907,  the  question 
of  the  separation  of  the  races  was  much  discussed,  but 
the  actual  outcome  has  not  been  learned.  It  developed  in 
the  debate  that  the  Southern  bishops  desired  separation, 
wishing  to  be  relieved  of  the  burden  of  the  Negroes  in 
their  dioceses,  while  the  bishops  from  other  sections  pre- 
ferred the  present  arrangement,  not  desiring  to  be  burdened 
with  a  class  of  people  not  in  their  dioceses.92 

The  Young  Men's  Christian  Associations  of  the  North- 
ern cities  have  to  meet  the  problem  of  the  Negro.  The 
New  Haven,  Connecticut,  people  refused  to  permit  Negroes 
to  attend  the  Y.  M.  C.  A.,  and  a  separate  building  had  to 
be  provided  for  them.93 

Within  the  colored  church  itself  there  is  manifest  a  con- 
flict between  the  Negroes  proper  and  mulattoes.  There  is 
a  town  in  North  Carolina  in  which  they  have  practical  sep- 
aration in  the  churches,  the  black  Negroes  going  to  one 
church  and  the  bright  mulattoes  to  another.  A  similar  sep- 
aration of  the  Negroes  and  mulattoes  in  churches  exists, 
to  some  extent,  in  Charleston,  South  Carolina.  At  a 
Negro  Christian  Congress  at  Washington  City,  in  1906, 
the  chairman  of  the  meeting  was  charged  with  removing 
from  the  program  dark-skinned  men  and  substituting  light- 
skinned  men.  It  provoked  such  a  discussion  as  to  divide 
the  meeting  into  two  factions.94 

NEGROES   IX   THE   MILITIA 

The  Brownsville  affair — that  is,  the  dismissal  without 
honor,  through  the  order  of  President  Roosevelt,  of  a 
whole  regiment  of  Negro  soldiers  because  of  the  miscon- 

144 


NEGROES    IN   THE   MILITIA 

duct  of  some  of  them  and  the  refusal  of  the  others  to 
testify  against  the  guilty  ones,  and  the  championship  of 
the  cause  of  the  Negroes  by  Senator  Foraker — has  brought 
into  much  prominence  the  question  of  the  Negro  as  a  sol- 
dier. 

The  Southern  States  have  been  and  are  unfavorable  to 
allowing  Negroes  to  serve  in  the  militia.  South  Carolina,95 
in  1865,  declared  that  persons  of  color  constituted  no  part 
of  the  militia  of  the  State.  Arkansas,96  in  1867,  accorded 
to  Negroes  all  the  rights  of  white  citizens,  with  a  few 
exceptions,  one  of  which  was  that  nothing  in  the  statute 
should  be  construed  as  modifying  any  statute  or  common 
law  usage  in  the  State  respecting  the  service  of  Negroes 
in  the  militia.  North  Carolina  97  provided  that  white  and 
colored  members  of  the  detailed  militia  should  not  be  com- 
pelled to  serve  in  the  same  companies.  Georgia,98  in 
1905,  by  statute,  abolished  the  colored  troops  of  the  State, 
active  and  retired,  and  discharged  the  officers  and  men 
from  the  military  service  of  the  State. 

There  is  very  little  legislation  on  the  subject  in  the 
other  States.  In  1879,  the  legislature  of  Connecticut " 
authorized  the  commander-in-chief  of  the  State  militia  to 
organize  four  independent  Negro  companies  of  infantry 
to  be  part  of  the  National  Guard.  West  Virginia,100  in 
1889,  provided  that,  if  any  colored  troops  should  be  or- 
ganized, they  should  be  enlisted  and  kept  separate  and 
apart  from  the  other  troops,  and  should  be  formed  into 
separate  companies  and  regiments.  New  Jersey,101  in 
1895,  made  provision  for  four  companies  of  colored  infan- 
try, presumably  meaning  that  they  should  be  all  colored 
and  kept  separate  from  the  other  troops. 
11  145 


CIVIL    RIGHTS    OF   NEGROES 


SEPARATION  OF  STATE  DEPENDENTS 

The  Southern  States,  as  a  rule,  require  a  separation  by 
race  of  inmates  of  State  charitable  and  penal  institutions, 
and  where  it  is  not  provided  for  by  statute,  it  is  done  as 
a  matter  of  custom.  Alabama,102  for  instance,  makes  it 
unlawful  for  any  jailer  or  sheriff,  having  charge  of  white 
and  colored  prisoners  before  conviction,  to  imprison  them 
permanently  together  in  the  same  apartments  of  the  jail 
or  other  places  of  safe-keeping,  if  there  are  enough  sepa- 
rate apartments.  It  is  also  unlawful  103  for  white  and 
colored  convicts  to  be  chained  together,  allowed  to  sleep 
together,  or  confined  in  the  same  room  or  apartment  when 
not  at  work. 

The  legislature  of  Arkansas  104  passed  a  statute  in 
1903,  directing  that  in  the  State  penitentiary  and  in  all 
county  jails,  stockades,  convict  camps,  and  all  other  places 
where  prisoners  are  confined,  separate  apartments  should 
be  provided  and  maintained  for  white  and  Xegro  prison- 
ers. Separate  bunks,  beds,  bedding,  dining  tables,  and 
other  furnishings  were  required,  and  after  they  had  once 
been  assigned  to  a  prisoner  of  one  race  they  must  not  be 
changed  to  the  use  of  one  of  the  other  race.  White  pris- 
oners must  not  be  handcuffed  or  otherwise  chained  or 
tied  to  a  Negro  prisoner. 

Georgia  105  does  not  allow  prison-keepers,  or  firms  leas- 
ing or  controlling  convicts,  to  confine  white  and  colored 
convicts  together,  or  to  work  them  chained  together,  or  to 
chain  them  together  in  going  to  and  from  their  work  or  at 
any  other  time.  Mississippi  106  provides  that  no  discrim- 
ination shall  be  made  on  account  of  race,  color,  or  previous 

146 


SEPARATION  OF  STATE  DEPENDENTS 

condition,  in  working  convicts.  This  does  not  mean  that 
they  shall  not  be  separated,  as  they  are  in  Georgia,  but  is 
simply  a  prohibition  against  discrimination  in  the  quality 
of  work  assigned  to  the  two  races.  At  the  last  session 
of  the  legislature  of  North  Carolina,107  a  bill  was 
passed  providing  for  the  separation  of  white  and  col- 
ored prisoners  in  the  State  penitentiary  and  in  the  State 
and  county  convict  camps  during  sleeping  and  eating 
hours. 

That  a  separation  of  the  two  races  exists  in  the  jails  of 
Washington  City  is  evidenced  by  a  protest  issued  a  year 
or  so  ago  by  the  National  Equal  Eights  Council  of  that 
city,  a  Negro  organization,  against  the  separation  of  the 
white  and  colored  prisoners  in  the  jails  of  the  city.  There 
was  no  allegation,  however,  that  the  cells  were  not  equal 
in  accommodation,  the  objection  being  raised  solely  at  the 
principle  of  separation.108 

As  to  reformatories,  Georgia 109  provides  that  they 
shall  be  so  constructed  as  to  keep  white  and  colored  in- 
mates separate.  West  Virginia  110  requires  that  the  white 
and  colored  inmates  of  its  reform  school  for  boys  shall  be 
kept  separate,  and  the  inmates  of  its  industrial  home  for 
girls  (also  a  reformatory)  shall  be  separate  as  far  as 
practicable. 

As  to  paupers,  Alabama 1J1  authorizes  the  county  com- 
missioners of  Washington  County  to  keep  separate  accom- 
modations for  the  maintenance  of  white  and  colored 
paupers. 

Not  many  States  have  statutes  which  say  in  so  many 
words  that  lunatics,  and  that  the  deaf,  mute,  and  blind 
shall  be  kept  separated  according  to  race;  but  one  finds 

147 


CIVIL   RIGHTS    OF  NEGROES 

appropriations  for  colored  asylums  and  schools,  etc.,  and 
one  is  justified  in  concluding  that,  where  a  colored  asylum 
or  school  is  built,  the  colored  persons  are  not  allowed  in 
the  other  asylums  and  schools  of  the  State.  Alabama,112 
for  instance,  has  a  school  for  the  Negro  deaf  and  blind 
at  Talladega,  under  the  control  and  management  of  the 
board  of  trustees  of  the  white  school  for  the  deaf,  and 
makes  an  annual  appropriation  for  the  support  of  the 
school.  Arkansas  113  also  provides  that  applicants  to  the 
deaf-mute  asylums  shall  be  received  without  restriction 
on  account  of  race  or  color,  but  does  not  forbid  their  sepa- 
ration by  race  within  the  asylum.  Tennessee,114  as  early 
as  1866,  provided  that  there  should  be  separate  asylums  for 
the  colored  blind,  deaf  and  dumb,  and  lunatics,  and  the 
trustees  of  these  institutions  were  given  power  to  prepare 
buildings  for  colored  insane,  "so  as  to  keep  them  secure 
and  safe,  and  yet  separate  and  apart  from  the  white 
patients."  In  1881,  that  State116  appropriated  $25,000 
to  provide  accommodations  for  the  colored  blind  at  Nash- 
ville, and  the  same  amount  for  the  colored  deaf  and  dumb 
at  Knoxville.  Kentucky  116  likewise  provided  in  1876  that 
white  and  colored  lunatics  should  not  be  kept  in  the  same 
building.  New  York 11T  has  on  many  occasions  made 
appropriations  for  asylums  for  colored  children,  thus 
leaving  the  impression  that  such  children  are  not  admitted 
to  the  white  asylums.  North  Carolina118  maintains  sep- 
arate asylums  for  its  white  and  colored  insane.  And 
Georgia  119  requires  the  asylums  of  the  State  to  provide 
apartments  for  the  insane  Negro  residents  of  the  State. 
Indiana,120  in  1879,  made  an  appropriation  to  associations 
formed  for  the  purpose  of  maintaining  an  asylum  for  col- 

148 


NOTES 

ored  orphan  children.  The  West  Virginia 121  asylum  for 
insane  must  have  separate  wards  for  white  and  colored 
patients. 

NOTES 

1  Bouvier's  "  Law  Dictionary,"  I,  p.  331. 
2 14  Stat.  L.  27,  chap.  31. 

3  Flack,  "  The  Adoption  of  the  Fourteenth  Amendment," 
pp.  46-50. 

4  Bowlin  v.  Com.,  1867,  65  Ky.  (2  Bush)  5. 
6  Fed.  Case  No.  16,151  (1866). 

6  Fed.  Case  No.  14,247  (1867). 

7  "  The  Adoption  of  the  Fourteenth  Amendment,"  pp.  53- 
54. 

8  Ibid.,  p.  94. 

9 16  Stat.  L.  144,  chap.  114, 

10 16  Wall,  36,  at  pp.  71-72  (1872). 

11 18  Stat.  L.  335,  chap.  114. 

12  Fed.  Case  No.  18,258  (1875). 

13  Fed.  Case  No.  18,260  (1875). 

14  Civil  Rights  Cases,  1875,  109  U.  S.  3,  at  pp.  24,  11, 
and  13. 

15  Acts  and  Resolves  of  Mass.,  1864-65,  p.  650. 

16  Hid.,  Jan.  sess.,  1866,  p.  242. 

17  Del.  Laws,  1871-73,  pp.  686-87. 
16  Ibid.,  1875-77,  chap.  194. 

19  Laws  of  Kan.,  1874,  chap.  49,  sec.  1. 

20  N.  Y.  Stat.  L.,  IX,  pp.  583-84. 

21  Laws  of  N.  Y.,  1881,  I,  p.  541. 

22  Laws  of  Fla.,  1865,  p.  25. 

23  Ibid.,  1873,  chap.  1947. 

24  Acts  of  La.,  1869,  p.  57.    See  also  Acts  of  La.,  1870, 
p.  57. 

149 


CIVIL-  RIGHTS    OF    NEGROES 

25  Ibid.,  1873,  pp.  156-57. 

26  Acts  of  Ark.,  1873,  pp.  15-19. 

27  Laws  of  Term.,  1875,  pp.  216-17. 

28  9  Baxter,  584. 

29  Laws  of  N.  C.,  1876-77,  pp.  589-90. 

30  Laws  of  Tenn.,  1885,  pp.  124-25. 

31Eevision,  1902,  sec.  1164;  Pub.  Acts  of  Conn.,  1905,  p. 
323. 

32  Annotated  Code,  1897,  sec.  5008. 

33  General  Stat,  1709-1895,  I,  p.  804. 

34  Laws  of  0.,  1884,  pp.  15-16;  1894,  pp.  17-18;  Bates's 
Annotated  Stat.     (Everett's  6th  Ed.)  II,  p.  2469. 

35  Revised  Stat,  1908,  sees.  609-10;  Laws  of  Colo.,  1895, 
pp.  139-40. 

36  Laws  of  111.,  1885,  pp.  64-65 ;  Jones  and  Addington's 
Supplement,  1902,  IV,  p.  395. 

37  Burns's  Annotated  Stat,  1908,  II,  sees.  3863-65. 

38  Acts  and  Resolves  of  Mass.,  1885,  p.  774 ;  1893,  p.  1320 ; 

1895,  p.  519. 

39  Compiled  Laws,  1897,  III,  sec.  11,759,  p.  3495. 

40  Laws  of  Minn.,  1897,  p.  616;  1899,  chap.  41;  Revised 
Laws,  1905,  sec.  2812. 

41  Compiled  Stat,  1907,  sees.  1932-33,  p.  501. 

42  Laws  of  R.  I.,  1884-85,  p.  171 ;  General  Laws  of  R.  I., 

1896,  p.  978. 

43  Laws  of  N.  Y.,  1893,  II,  p.  1720;  1899,  II,  p.  1556; 
Consolidated  Laws  of  N.  Y.,  1909,  I,  pp.  626-27. 

44  Laws  of  Pa.,  1887,  pp.  130-31. 

45  Cotton  and  Ballinger's  Annotated  Codes  and  Stat.,  II, 
sees.  7069-70,  p.  1953. 

46  Stat,  1898,  H,  pp.  2676-77,  sec.  4398  c. 

47  Civil  Code,  1906,  pp.  29-30. 

48  General  Stat,  1905,  sees.  2507-08. 

150 


NOTES 

49  U.  S.  v.  Newcomer,  1876,  Fed.  Case  No.  15,868. 

50  Buss's  Application,  1898,  20  Pa.  Co.  Ct.  Kep.  510. 

51  Furchey  v.  Eagleson,  1896,  43  N.  E.  146. 

52  Acts  and  Resolves  of  Mass.,  1896,  pp.  659-60. 

53  Alsberg  v.  Lucerne  Hotel  Co.,  1905,  46  Misc.  Rep.  (N. 
Y.)  617. 

54  Lewis  v.  Hitchcock,  1882,  10  Fed.  4. 

55  Ferguson  v.  Gies,  1890,  82  Mich.  358;  46  N.  W.  718. 

56  Bryan  v.  Adler,  1897,  72  N.  W.  368. 

57  De  Veaux  v.  Clemmons,  1898,  17  O.  Cir.  Ct.  Rep.  33. 
68  Humburd  v.  Crawford,  1905,  105  N.  W.  330. 

59  Messenger  v.  State,  1889,  25  Neb.  674. 

60  Faulkner  v.  Salozzi,  1907,  79  Conn.  541. 

61  Burks  v.  Basso,  1905,  73  N.  E.  58. 

62  Com.  v.  Sylvester,  1866,  95  Mass.   (13  Allen)   247. 

63  Rhone  v.  Loomis,  1898,  74  Minn.  200;  77  N.  W.  31. 

64  Kellar  v.  Koerber,  1899,  55  N.  E.  1002. 

65  Acts  of  La.,  1908,  p.  236. 

66  State  ex  rel    Tax  Collector  v.  Falkenheimer,  1909,  49 
So.  214. 

67  Baker,  "  Following  the  Colour  Line,"  p.  36. 

68  Nashville,  Tenn.,  Weekly  Journal  and  Tribune,  Feb.  2, 
1907. 

69  Cecil  v.  Green,  1896,  161  111.  265 ;  43  N.  E.  1105. 

70  Donnell  v.  State,  1873,  12  Am.  Rep.  375 ;  46  Miss.  661. 

71  Fed.  Case  No.  18,260  (1875). 

72  Joseph  v.  Bidwell,  1876,  28  La.  Ann.  382. 

73  Baylies  v.  Curry,  1889,  128  111.  287. 

74  Younger  v.  Judah,  1892,  19  S.  W.  1109. 

75  Thomas  v.  Williams,  1905,  95  N.  Y.  Sup.  592. 

76  Bowlin  v.  Lyon,  1885,  67  la.  536. 

77  People  v.  King,  1886,  42  Hun.  186 ;  affirmed  in  110  N. 
Y.  418. 

151 


CIVIL   RIGHTS   OF   NEGROES 

78  Laws  of  Miss.,  1900,  p.  171. 
79Kevision,  1902,  sec.  3535. 

80  Eevised  Laws,  1902,  II,  p.  1153. 

81  Laws  of  O.,  1889,  pp.  163-64. 

82  Laws  of  N.  Y.,  1891,  p.  288. 

83  Pub.  Acts  of  Mich.,  1893,  pp.  60-61. 

84  "  Following  the  Colour  Line,"  p.  135. 

85  Ibid.,  pp.  142  and  160. 

88  Acts  and  Resolves  of  Mass.,  1894,  p.  825. 

87  Lincoln,  Neb.,  Star,  Nov.  7, 1903. 

88  Raleigh,  N.  C.,  News  and  Observer,  April  6,  1906. 

89  Norfolk,  Va.,  Landmark,  May  27,  1906 ;  Raleigh,  N.  C., 
News  and  Observer,  May  29,  1906. 

90  Raleigh,  N.  C.,  News  and  Observer,  June  3,  1908. 

91  Ibid.,  May  19  and  26, 1907. 

92  Ibid.,  Oct.  9  and  20,  1907. 

93  Ibid.,  March  18,  1906. 

94  Richmond,  Va.,  News-Leader,  Aug.  3,  1906. 

95  Laws  of  S.  C.,  1865,  p.  275. 

96  Laws  of  Ark.,  1866-67,  p.  99. 

97  Pub.  Laws  of  N.  C.,  1868,  p.  35. 

98  Laws  of  Ga.,  1905,  p.  166. 

"Pub.  Acts  of  Conn.,  1879,  pp.  377-78;  1883,  p.  289. 

100  Laws  of  W.  Va.,  1889-90,  p.  87. 

101  Laws  of  N.  J.,  1895,  p.  274. 

102  Laws  of  Ala.,  1875-76,  p.  285;  repeated  in  the  Code 
of  1876,  sec.  4321,  p.  915. 

w*Ibid.,  1884-85,  p.  192;  Code,  1896,  II,  p.  210. 

104  Acts  of  Ark.,  1903,  p.  161. 

105  Laws  of  Ga.,  1890-91,  I,  p.  213. 

106  Laws  of  Miss.,  1872,  p.  85. 

107  Laws  of  N.  C.,  1909,  p.  1215. 

108  Raleigh,  N.  C.,  News  and  Observer,  July  21,  1907. 

152 


NOTES 

109  Laws  of  Ga.,  1893,  p.  121. 

110  Laws  of  W.  Va.,  1889,  p.  15;  Code,  1906,  pp.  770  and 
776. 

111  Local  Acts  of  Ala.,  1898-99,  p.  86. 

112  Code,  1907,  II,  sees.  1949-52. 

113  Code,  1874,  sec.  384;  1884,  sec.  2505,  p.  572. 

114  Laws  of  Term.,  1865-66,  pp.  5  and  65. 

115  Ibid.,  1881,  p.  139. 

116  Laws  of  Ky.,  1876,  I,  p.  112. 

117  Laws  of  N.  Y.,  1866,  II,  p.  1675;  1867,  II,  p.  1850; 
1868,  II,  pp.  1845-49;  1869,  H,  pp.  2064-66;  1870,  H,  pp. 
1689-90,  etc. 

118  Laws  of   N.   C.,   1874-75,  pp.   338-39. 

119  Laws  of  Ga.,  1885,  p.  399. 

120  Code,  1901,  II,  sec.  4598. 

121  Code,  1906,  sec.  2699,  p.  1104;  Laws  of  W.  Va.,  1897, 
p.  42 ;  1904,  p.  160. 


CHAPTER   VIII 

SEPARATION  OF  RACES  IN  SCHOOLS 
BEREA  COLLEGE  AFFAIR 

THREE  incidents,  occurring  during  the  past  six  years 
under  widely  varying  circumstances  and  in  far  separated 
localities,  have  brought  the  question  of  the  separation  of 
the  white  and  colored  races  in  schools  into  much  promi- 
nence. 

On  the  22d  of  March,  1904,  the  legislature  of  Ken- 
tucky 1  enacted  the  following  statute : 

"  Sec.  1.  That  it  shall  be  unlawful  for  any  person, 
corporation  or  association  of  persons  to  maintain  or  oper- 
ate any  college,  school  or  institution  where  persons  of 
the  white  and  Negro  races  are  both  received  as  pupils  for 
instruction;  and  any  person  or  corporation  who  shall 
operate  or  maintain  any  such  college,  school  or  institution 
shall  be  fined  one  thousand  dollars,  and  any  person  or  cor- 
poration who  may  be  convicted  of  violating  the  provisions 
of  this  act  shall  be  fined  one  hundred  dollars  for  each  day 
they  may  operate  said  school,  college  or  institution  after 
such  conviction. 

"  Sec.  2.  That  any  instructor  who  shall  teach  in  any 
school,  college  or  institution  where  members  of  said  two 
races  are  received  as  pupils  for  instruction  shall  be  guilty 

154 


BEREA    COLLEGE    AFFAIR 

of  operating  and  maintaining  same  and  fined  as  provided 
in  the  first  section  hereof. 

"  Sec.  3.  It  shall  be  unlawful  for  any  white  person  to 
attend  any  school  or  institution  where  Negroes  are  re- 
ceived as  pupils  or  receive  instruction,  and  it  shall  be  un- 
lawful for  any  Negro  or  colored  person  to  attend  any 
school  or  institution  where  white  persons  are  received  as 
pupils,  or  receive  instruction.  Any  persons  so  offending 
shall  be  fined  fifty  dollars  for  each  day  he  attends  such  in- 
stitution or  school:  Provided,  That  the  provisions  of  this 
law  shall  not  apply  to  any  penal  institution  or  house  of 
reform. 

"  Sec.  4.  Nothing  in  this  act  shall  be  construed  to  pre- 
vent any  private  school,  college  or  institution  of  learning 
from  maintaining  a  separate  and  distinct  branch  thereof, 
in  a  different  locality,  not  less  than  twenty-five  miles  dis- 
tant, for  the  education  exclusively  of  one  race  or  color. 

"  Sec.  5.  This  act  shall  not  take  effect,  or  be  in  operation 
before  the  fifteenth  day  of  July,  Nineteen  Hundred  and 
Four." 

This  law  was  general  in  its  terms,  requiring,  under 
heavy  penalty,  the  separation  of  the  white  and  colored 
races  in  all  schools  of  the  State,  private  as  well  as  public. 
But  at  the  time  of  the  consideration  of  the  bill,  the  legis- 
lators probably  knew  that  there  was  only  one  school  in  the 
State  which  admitted  both  white  and  colored  students. 
That  was  Berea  College,  which  had  been  established  about 
fifty  years  before  for  the  purpose  of  "  promoting  the  cause 
of  Christ "  and  of  giving  general  and  nonsectarian  instruc- 
tion to  "  all  youth  of  good  moral  character/'  It  was  pri- 
marily for  the  benefit  of  the  mountain,  whites  of  Kentucky, 

155 


Tennessee,  Virginia,  and  the  Carolinas.  After  the  Civil 
War,  the  doors  of  the  school  had  been  opened  to  Negroes, 
and  in  1904,  Berea  had  a  student-body  of  nine  hundred 
and  twenty-seven,  of  whom  one  hundred  and  seventy-four 
were  Negroes.2  The  President  and  Trustees  of  the  col- 
lege protested  against  the  enactment  of  the  above  law,  but 
to  no  avail.  When  the  session  of  1904-5  began,  the  col- 
ored students  were  refused  admission.  The  college  at 
once  took  steps  to  aid  these  Negro  youths.  It  bore  the 
transportation  expenses  of  about  a  hundred  of  them  to 
Fiske  University,  Knoxville  College,  Hampton  Insti- 
tute, and  other  distinctly  colored  schools.  The  white 
students  left  behind  gave  to  the  colored  students  leav- 
ing Berea  the  following  expression  of  their  regard  for 
them: 

"  Friends  and  Fellow-Students :  As  we  meet  for  the 
first  time  under  new  conditions  to  enjoy  the  great  privileges 
of  Berea  College,  we  think  at  once  of  you  who  are  now 
deprived  of  these  privileges.  Our  sense  of  justice  shows 
us  that  others  have  the  same  rights  as  ourselves,  and  the 
teaching  of  Christ  leads  us  to  '  remember  them  that  are  in 
bonds  as  bound  with  them.' 

"  We  realize  that  you  are  excluded  from  the  class  rooms 
of  Berea  College,  which  we  so  highly  prize,  by  no  fault 
of  your  own,  and  that  this  hardship  is  a  part  of  a  long  line 
of  deprivations  under  which  you  live.  Because  you  were 
born  in  a  race  long  oppressed  and  largely  untaught  and 
undeveloped,  heartless  people  feel  more  free  to  do  you 
wrong,  and  thoughtless  people  meet  your  attempts  at  self- 
improvement  with  indifference  or  scorn.  Even  good  people 
sometimes  fear  to  recognize  your  worth,  or  take  your  part 

156 


BEREA    COLLEGE    AFFAIR 

in  a  neighborly  way  because  of  the  violences  and  prejudices 
around  us. 

"  We  are  glad  that  we  have  known  you,  or  known 
about  you,  and  that  we  know  you  are  rising  above  all  dis- 
couragements, and  showing  a  capacity  and  a  character  that 
give  promise  for  your  people.  .  .  .  And  you  will  always 
have  our  friendship,  and  the  friendship  of  the  best  people 
throughout  the  world.  We  hope  never  to  be  afraid  or 
ashamed  to  show  our  approval  of  any  colored  person  who 
has  the  character  and  worth  of  most  of  the  colored  students 
of  Berea.  We  are  glad  that  the  college  is  providing  funds 
to  assist  you  in  continuing  your  education,  and  we  are  sure 
the  institution  will  find  ways  in  which  to  do  its  full  duty 
by  the  colored  race."  3 

As  might  have  been  expected,  the  statute  separating  the 
races  in  schools  aroused  much  comment  throughout  the 
country,  the  northern  and  eastern  press  being,  as  a  rule, 
hostile  to  it,  the  southern  press  coining  to  its  defence. 
Haste  was  made  to  have  a  test  case  involving  the  consti- 
tutionality of  the  law  heard.  On  June  12,  1906,  the  Ken- 
tucky Court  of  Appeals  in  the  case  of  Berea  College  v. 
The  Commonwealth  *  upheld  its  constitutionality,  being  of 
opinion  that  the  law  in  question  did  not  violate  the  Bill  of 
Eights  of  the  State  Constitution,  because  the  requirement 
of  separation  was  a  reasonable  exercise  of  the  police  power 
of  the  State,  and  did  not  violate  the  Fourteenth  Amend- 
ment by  depriving  Berea  College  of  its  property  without 
due  process  of  law,  because  the  right  to  teach  white  and 
colored  children  in  a  private  school  at  the  same  time  and 
place  was  not  a  property  right,  but  the  court  added  that  that 
part  of  the  statute  requiring  a  separate  school  for  the  other 

157 


SEPAEATION  OF  RACES  IN  SCHOOLS 

race,  if  established,  to  be  at  a  distance  of  not  less  than 
twenty-five  miles,  was  unreasonable.  The  court  took  the 
position  that  the  white  and  black  races  are  naturally  an- 
tagonistic, and  that  the  enforced  separation  of  the  children 
in  schools  is  in  line  with  the  preservation  of  the  peace. 

The  Supreme  Court  of  the  United  States,5  on  November 
9,  1908,  affirmed  the  opinion  of  the  State  court.  Mr.  Jus- 
tice Brewer,  however,  placed  his  decision  upon  the  ground 
that  the  legislature  has  a  right,  by  express  reservation,  to 
amend  the  charter  so  long  as  the  amendment  does  not  de- 
feat or  substantially  impair  the  object  of  the  grant  under 
the  charter.  Mr.  Justice  Harlan,  in  a  dissenting  opinion, 
said  the  court  should  meet  the  entire  question  squarely  and 
decide  whether  it  is  a  crime  under  any  conditions  to  edu- 
cate white  children  and  Negro  children  at  the  same  institu- 
tion. He  said  that  the  Kentucky  statute  was  void  as  an 
arbitrary  invasion  of  the  rights  of  liberty  and  property 
granted  by  the  Fourteenth  Amendment  against  unauthor- 
ized State  action.  "  Have  we,"  he  asked,  "  become  so  in- 
oculated with  prejudice  of  race  that  an  American  govern- 
ment, professedly  based  on  the  principles  of  freedom,  and 
charged  with  the  protection  of  all  citizens  alike,  can  make 
distinction  between  such  citizens  in  the  matter  of  their 
voluntary  meeting  for  innocent  purposes  simply  because  of 
their  respective  races  ?  Further,  if  the  lower  court  be  right, 
then  a  State  may  make  it  a  crime  for  white  and  colored 
persons  to  frequent  the  same  market  places  at  the  same 
time,  or  appear  in  an  assemblage  of  citizens  convened  to 
consider  questions  of  a  public  or  political  nature  in  which 
all  citizens,  without  regard  to  race,  are  equally  interested. 
Many  other  illustrations  might  be  given  to  show  the  mis- 

158 


EXCLUSION    OF    JAPANESE    FROM    PUBLIC    SCHOOLS 

chievous,  not  to  say  cruel,  character  of  the  statute  in  ques- 
tion, and  how  inconsistent  such  legislation  is  with  the  great 
principle  of  the  equality  of  citizens  before  the  law."  Mr. 
Justice  Harlan  added  that  he  did  not  wish  to  be  under- 
stood as  criticising  the  system  of  separate  public  schools 
for  the  races,  but  that  his  censure  was  directed  at  the 
penal  provision  of  the  Kentucky  law  involved  in  this  case, 
which  he  considered  unconstitutional,  and  so  vitiating  the 
whole  statute. 


EXCLUSION   OF    JAPANESE    FROM    PUBLIC    SCHOOLS    OF    SAN 
FRANCISCO 

The  second  incident,  which  opened  the  question  of  the 
separation  of  the  races  in  schools  and  which  led  to  inter- 
national comment,  was  the  exclusion  of  the  Japanese  chil- 
dren from  the  public  schools  of  the  city  of  San  Francisco. 
A  law  was  enacted  by  the  California  Legislature  6  on  March 
12,  1872,  which  provided  that  school  trustees  should  have 
the  power  to  establish  separate  schools  for  Indian  children 
and  for  the  children  of  Mongolian  and  Chinese  descent, 
and,  when  separate  schools  were  furnished,  to  keep  Indian, 
Mongolian,  and  Chinese  children  from  attending  any 
other  school.  The  law  was  amended  T  in  1880,  1885,  1891, 
1893,  1895,  and  1903,  but  the  provision  for  separation 
of  the  races  remained  essentially  unchanged.  This  law 
was  not  enforced  until  1901,  when  the  labor  vote  became 
predominant.  Then,  according  to  Secretary  Metcalf,8 
who  investigated  the  conditions,  the  labor  unionists  began 
a  crusade  to  exclude  the  Japanese  laborers  from  California, 
as  the  Chinese  had  already  been  excluded.  On  May  6, 

159 


SEPARATION  OF  RACES  IN  SCHOOLS 

1905,  the  Board  of  Education  of  San  Francisco  passed  the 
following  resolution : 

"  That  the  Board  of  Education  is  determined  in  its 
efforts  to  effect  the  establishment  of  separate  schools  for 
Chinese  and  Japanese  pupils,  not  only  for  the  purpose  of 
relieving  the  congestion  at  present  prevailing  in  our 
schools,  but  also  for  the  higher  end  that  our  children  should 
not  be  placed  in  any  position  where  their  youthful  impres- 
sions may  be  affected  by  association  with  pupils  of  the 
Mongolian  race."  On  October  1,  1906,  the  Board  took  the 
next  step  and  adopted  this  resolution :  "  That  in  accordance 
with  Article  X,  Section  1662,  of  the  school  law  of  Cali- 
fornia, principals  are  hereby  directed  to  send  all  Chinese, 
Japanese  or  Korean  children  to  the  Oriental  Public  School, 
situated  on  the  south  side  of  Gary  street  between  Powell 
and  Mason  streets,  on  and  after  Monday,  October  15, 
1906." 

On  the  day  the  latter  rule  went  into  effect  there  were 
28,736  school  children  in  San  Francisco,  of  whom  ninety- 
three  were  Japanese  distributed  in  twenty-three  primary 
and  grammar  schools  of  the  city 9  and  nearly  half  the  Jap- 
anese children  were  in  two  of  the  twenty-three  schools. 
When  the  primary  schools,  except  the  Oriental,  were  closed 
to  the  Japanese  children  the  Japanese  residents  became 
indignant.  They  appealed  to  their  consul,  and  he,  to  their 
ambassador  at  Washington.  The  latter,  in  turn,  called  on 
the  President,  reporting  the  matter  at  the  same  time  to  the 
home  government.  Alarmists  began  to  talk  of  war  with 
Japan.  President  Roosevelt  dispatched  Secretary  Metcalf 
to  California  to  make  investigations.  To  use  the  Presi- 
dent's words,  "  I  authorized  and  directed  Secretary  Met- 

160 


EXCLUSION    OF    JAPANESE    FROM    PUBLIC    SCHOOLS 

calf  to  state  that  if  there  was  failure  to  protect  persons  and 
property,  then  the  entire  power  of  the  Federal  government 
within  the  limits  of  the  Constitution  would  be  used 
promptly  and  vigorously  to  enforce  the  observance  of  our 
treaty,  the  supreme  law  of  the  land,  which  treaty  guaran- 
teed to  the  Japanese  residents  everywhere  in  the  Union  full 
and  perfect  protection  for  their  persons  and  property,  and 
to  this  end  everything  in  my  power  would  be  done,  and  all 
the  forces  of  the  United  States,  both  civil  and  military, 
which  I  could  lawfully  employ,  would  be  employed." 
Mayor  Schmitz  and  a  number  of  prominent  men  of  the 
city  hurried  across  the  continent  to  confer  with  the  Presi- 
dent. A  troublesome  point  of  constitutional  law  was  in- 
volved. It  was  admitted  that  public  education  is  distinctly 
a  State  function.  A  treaty  is  declared  by  the  Federal  Con- 
stitution 10  to  be  the  "  supreme  law  of  the  land."  Is  a 
treaty  the  "supreme  law  of  the  land"  in  the  sense  that 
the  President  or  Supreme  Court  can  treat  as  invalid  a 
State  statute  which  contravenes  it,  or  must  the  Federal 
government  bow  in  submission  to  that  State  statute  even 
though  it  is  counter  to  a  treaty  obligation  ?  The  treaty  of 
1894  with  Japan  accorded  to  the  Japanese  residents  in  the 
United  States  the  rights  and  privileges  of  the  "most  fa- 
vored nation."  The  State  of  California  had  declared  that 
Mongolian  children,  among  which  were  Japanese,  might,  at 
the  discretion  of  the  Board  of  Education,  be  required  to  go 
to  separate  schools  for  their  race.  The  children  of  the  other 
"  most  favored "  nations  were  permitted  to  attend  the 
regular  public  schools.  Is  admission  to  the  regular  public 
schools  one  of  the  rights  and  privileges  guaranteed  to  Jap- 
anese children  by  the  treaty,  which  cannot  be  limited  by  a 
12  161 


SEPARATION    OF   RACES    IN    SCHOOLS 

State,  or  does  the  State  of  California,  by  its  police  power, 
have  a  right  to  separate  the  school  children  by  race,  re- 
gardless of  national  treaties?  These  questions,  however, 
did  not  have  to  be  answered;  before  the  crisis  came,  all 
parties  seemed  to  have  arrived  at  a  satisfactory  compro- 
mise. It  was  an  agreement  that  all  Japanese  children  not 
over  fourteen  years  of  age  should  be  readmitted  to  the 
primary  schools,  and  those  over  that  age  should  be  ad- 
mitted to  the  schools  of  higher  grade,  and  the  Japanese 
coolie  labor  should  be  excluded.  Thus  was  obviated  what 
at  one  time  looked  like  the  approach  of  an  international 
controversy  over  the  separation  of  the  races  in  schools. 

During  the  last  session  of  the  California  legislature, 
that  of  1909,  several  bills  concerning  the  Japanese  were 
introduced,  one  of  which  was  as  follows :  "  Every  school, 
unless  otherwise  provided  by  law,  must  be  open  for  the 
admission  of  all  children  between  six  and  twenty-one  years 
of  age  residing  in  the  district,  and  the  Board  of  School 
Trustees  or  city  Board  of  Education  have  power  to  admit 
adults  and  children  not  residing  in  the  district  whenever 
good  reasons  exist  therefor. 

"  Trustees  shall  have  the  power  to  remove  children  of 
filthy  or  vicious  habits  or  children  suffering  from  conta- 
gious or  infectious  diseases,  and  also  to  establish  separate 
schools  for  Indian  children  and  for  children  of  Mongolian 
or  Japanese  or  Chinese  descent. 

"When  such  separate  schools  are  established,  Indian, 
Chinese,  Japanese  or  Mongolian  children  must  not  be  ad- 
mitted into  any  other  school ;  provided,  that  in  cities  and 
towns  in  which  the  kindergarten  has  been  adopted,  or  may 
hereafter  be  adopted  as  part  of  the  public  primary  schools, 

162 


DR.    ELIOT  -  ON    SEPARATION    OF    RACES    IN    SCHOOLS 

children  may  be  admitted  to  such  kindergarten  classes  at 
the  age  of  four  years;  and  provided  further,  that  in  cities 
or  school  districts  in  which  separate  classes  have  been  or 
may  hereafter  be  established  for  the  instruction  of  the 
deaf,  children  may  be  admitted  to  such  classes  at  the  age 
of  three  years."  Practically  the  only  difference  between 
this  bill  and  the  present  law  is  the  insertion  of  "  Japanese." 

President  Koosevelt  considered  this  and  the  other  bills 
of  such  serious  import  that  he  telegraphed  to  the  Governor 
of  the  State  to  use  his  influence  to  prevent  enactments  of 
this  nature.  After  a  long  fight  the  bill  was  killed.  The 
legislature  made  an  appropriation  for  a  census  of  the  Jap- 
anese in  California  in  order  to  see  just  how  serious  the 
problem  was.12 

The  people  along  the  Canadian  Pacific  coast  are  facing 
a  question  similar  to  that  in  California.  A  member  of 
the  provincial  Parliament  from  Manaimo.  British  Colum- 
bia, has  recently  given  notice  that  he  will  introduce  a 
measure  providing  for  the  exclusion  of  Oriental  children 
from  public  schools,  declaring  that  his  purpose  is  to  compel 
the  government  to  maintain  separate  schools.13 

DR.    CHARLES   W.    ELIOT   ON   SEPARATION   OF   RACES   IN 
SCHOOLS 

The  third  incident  referred  to,  though  not  a  matter  of 
legislation,  did  much  to  focus  the  attention  of  the  country 
at  large  upon  the  question  of  the  separation  of  the  races 
in  schools.  The  Twentieth  Century  Club  of  Boston  met  at 
luncheon  on  the  14th  of  February,  1907,  to  consider  the 
situation  of  Berea  College.  Dr.  Charles  W.  Eliot,  then 

163 


SEPARATION  OF  RACES  IN  SCHOOLS 

President  of  Harvard  University,  was  one  of  the  speakers. 
In  the  course  of  his  remarks,  he  said :  "  If  the  numbers  of 
whites  and  blacks  were  more  nearly  equal  [in  Boston]  we 
might  feel  like  segregating  the  one  from  the  other  in  our 
own  schools.  It  may  be  that  as  large  and  generous  a  work 
can  be  done  for  the  Negro  in  this  way  as  in  mixed  schools. 
So  the  separation  of  the  races  in  the  Berea  schools  is  not 
really  an  abandonment  of  the  principle,  although  it  may 
be  a  departure  from  the  original  purpose. 

"  Perhaps  if  there  were  as  many  Negroes  here  as  there 
we  might  think  it  better  for  them  to  be  in  separate  schools. 
At  present  Harvard  has  about  five  thousand  white  students 
and  about  thirty  of  the  colored  race.  The  latter  are  hidden 
in  the  great  mass  and  are  not  noticeable.  If  they  were 
equal  in  numbers  or  in  a  majority,  we  might  deem  a  separa- 
tion necessary/' 14 

These  conservative  and  guarded  words  of  the  head  of 
the  University  which  has,  above  all  other  American  insti- 
tutions of  learning,  preserved  and  encouraged  the  "  open- 
door  policy  "  toward  students  of  all  races,  struck  consterna- 
tion to  the  radicals  of  both  the  white  and  colored  races  in 
the  North  and  East,  and  gladdened  the  hearts  of  many  of 
the  South  and  West  who  are  facing  their  own  race  prob- 
lems. One  side  felt  that  it  had  lost  an  illustrious  standard- 
bearer;  the  other,  that  it  had  won  a  strong  ally. 

These  three  incidents  show  that  the  separation  of  the 
races  in  schools  is  a  live  question,  worthy  of  an  investiga- 
tion. It  is  probable  that  there  are  many  private  and  pub- 
lic schools  outside  of  the  South  which  do  not,  in  fact,  admit 
colored  students.  Probably  there  are  schools  which  would 
close  their  doors  to  white  applicants.  It  may  be  that  there 

164 


SEPARATION    BEFORE    1865 

are  actual  discriminations  against  one  or  the  other  race 
in  those  schools  which  claim  to  make  no  distinction  on 
account  of  race  or  color.  But  many  such  matters  as  these 
have  not  come  under  the  eye  of  the  law,  and  so  have  no 
place  here. 

SEPARATION  BEFORE    1866 

Although  one  need  not  consider  in  detail  the  laws 
separating  the  races  in  schools  before  the  Civil  War,  be- 
cause the  public  school  system  then  was  poorly  developed, 
as  a  rule,  and  the  Negro  had  not  attained  the  rights  of  a 
citizen  in  many  States,  still  it  is  well  to  look  into  some  of 
the  antebellum  statutes  and  decisions  to  find  precedents 
for  later  statutes  and  rulings  of  the  courts  upon  this 
subject. 

In  Ohio,  prior  to  1848,  no  provision  was  made  for  the 
public  education  of  colored  children,  and  the  property  of 
colored  persons  was  not  taxed  for  school  purposes.  In  fact, 
a  law  15  of  February  10,  1829,  expressly  excluded  black  and 
mulattoes  from  the  public  schools.  In  1834,  the  child  of 
a  man  three-quarters  white  and  of  a  white  woman  was  de- 
nied admission  to  a  public  school.  In  a  case  ia  arising  out 
of  it,  the  court  held  that  a  child  with  more  than  one-half 
white  blood  is  entitled  to  the  privilege  of  the  whites,  say- 
ing :  "  We  think  the  term  white  as  used  in  the  law  describes 
blood  and  not  complexion.  .  .  .  The  plaintiff's  children, 
therefore,  are  white  within  the  meaning  of  the  law,  though 
the  defendants  have  had  the  shabby  meanness  to  ask  from 
him  his  contribution  of  tax,  and  exclude  his  children  from 
the  benefit  of  the  school  he  helped  to  support." 

In  1848,  a  law 17  of  the  same  State  provided  for  the 
165 


SEPARATION    OF   RACES    IN    SCHOOLS 

levy  of  a  tax  upon  the  property  of  colored  persons  for  the 
support  of  colored  schools,  if  the  objection  was  made  to  the 
admission  of  colored  children  into  white  schools.  It  pro- 
hibited the  application  of  any  part  of  the  tax  paid  by  white 
persons  to  the  support  of  colored  schools  unless  the  whites 
assented  thereto.  A  law  having  so  many  options  was  objec- 
tionable and  was  repealed  within  a  year.  The  next  year, 
1849,  a  statute  18  was  enacted  with  regard  to  the  education 
of  colored  children,  but  this  appropriated  to  the  colored 
schools  only  the  funds  arising  from  taxes  paid  by  colored 
persons.  The  year  before  the  white  patron  of  a  school  had 
brought  an  action  against  the  directors  because  they 
erroneously  admitted  colored  children  to  the  school,  thus 
contriving,  he  said,  "  to  deprive  him  of  the  benefit "  of 
sending  his  children  to  the  school.  The  court 19  ruled  that 
the  directors  were  not  liable  because  they  did  not  act  with 
corrupt  motives,  but  had  simply  misjudged  the  law. 

The  law  of  1849  gave  rise  to  a  difficulty.  The  Consti- 
tution of  Ohio,  by  restricting  the  electorate  to  white  per- 
sons, had  provided  that  those  entrusted  with  any  power  con- 
nected with  the  government  of  the  State  should  be  white 
persons.  Are  school  directors  entrusted  with  any  govern- 
mental power  ?  The  court 20  held  that  they  are  not,  in  the 
sense  of  the  Constitution,  and  that  colored  persons  might 
be  directors  of  colored  schools.  A  statute  21  of  1853  re- 
pealed that  of  1849  and  provided  for  a  division  of  the  pub- 
lic school  funds  in  proportion  to  the  number  of  children  of 
school  age,  regardless  of  color.  But  separate  schools  were 
still  maintained.  Under  this  law,  it  was  held  22  that  the 
children  of  three-eighths  African  and  five-eighths  white 
blood,  who  were  distinctly  colored  and  generally  treated 

166 


SEPARATION    BEFORE    1865 

and  regarded  as  colored  children  by  the  community  where- 
in they  resided,  should  not  be,  as  of  right,  entitled  to  ad- 
mission into  white  schools.23  In  1841,  it  had  been  held 
that  a  youth  of  Negro,  Indian,  and  white  blood,  but  of 
more  than  half  white  blood,  was  entitled  to  the  benefit  of 
the  school  fund. 

In  Indiana,24  in  1850,  the  public  school  law  provided 
for  a  tax  levy  for  the  support  of  the  schools,  but  omitted  "  all 
Negroes  and  mulattoes  "  from  the  tax  list.  Some  colored 
children  applied  for  admission,  not  as  beneficiaries  of  the 
public  school  fund,  but  offering  to  pay  their  own  tuition. 
The  court 25  of  that  State  held  that  they  could  not  be  re- 
ceived if  the  resident  parents  of  white  children  attending  or 
desiring  to  attend  the  school  objected,  saying:  "This  [the 
exclusion  of  the  colored  children]  has  not  been  done  be- 
cause they  do  not  need  education,  nor  because  their  wealth 
was  such  as  to  render  aid  undesirable,  but  because  black 
children  were  deemed  unfit  associates  of  white,  as  school 
companions.  Now,  surely,  this  reason  operates  with  equal 
force  against  such  children  attending  the  schools  at  their 
own,  as  at  the  public  expense." 

In  the  case  of  Eoberts  v.  The  City  of  Boston,26  which 
was  argued  before  the  Supreme  Court  of  Massachusetts 
in  1849,  in  which  Charles  Stimner  was  counsel  for  the 
plaintiff,  the  court  gives  the  following  interesting  infor- 
mation :  "  The  colored  population  of  Boston  constitute  less 
than  one  sixty-second  part  of  the  entire  population  of  the 
city.  For  half  a  century,  separate  schools  have  been  kept 
in  Boston  for  colored  children,  and  the  primary  school  for 
colored  children  in  Belknap  street  was  established  in  1820, 
and  has  been  kept  there  ever  since.  The  teachers  of  this 

167 


school  have  the  same  compensation  and  qualifications  as  in 
other  like  schools  in  the  city.  Schools  for  colored  children 
were  originally  established  at  the  request  of  colored  citi- 
zens, whose  children  could  not  attend  the  public  schools,  on 
account  of  the  prejudice  then  existing  against  them.  .  .  . 

"In  1846,  George  Putnam  and  other  colored  citizens 
of  Boston  petitioned  the  primary  school  committee  that 
exclusive  schools  for  colored  children  might  be  abolished, 
and  the  committee,  on  the  22d  of  June,  1846,  adopted  the 
report  of  a  sub-committee,  and  a  resolution  appended 
thereto,  which  was  in  the  following  words: 

" '  Eesolved,  that  in  the  opinion  of  this  board,  the  con- 
tinuance of  the  separate  schools  for  colored  children,  and 
the  regular  attendance  of  all  such  children  upon  the  school, 
is  not  only  legal  and  just,  but  is  best  adapted  to  promote 
the  education  of  that  class  of  our  population.' ': 

At  the  time  of  this  case,  there  were  one  hundred  and 
sixty  primary  schools  in  Boston,  of  which  two  were  set 
apart  for  colored  children.  The  facts  of  the  case  were 
these:  A  colored  child  applied  for  admission  to  a  white 
school  on  the  ground  that  the  colored  primary  school  was 
one-fifth  of  a  mile  farther  from  her  home.  The  general 
school  committee  refused  her  admission,  and  the  colored 
girl,  through  her  father,  sued  the  city  of  Boston.  The 
Supreme  Court  upheld  the  power  of  the  committee  to  pro- 
vide separate  schools  for  colored  children  and  prohibit 
their  attendance  at  other  schools.  The  court  also  said :  "  It 
is  urged,  that  this  maintenance  of  separate  schools  tends 
to  deepen  and  perpetuate  the  odious  distinction  of  caste, 
founded  in  a  deep-rooted  prejudice  in  public  opinion.  This 
prejudice,  if  it  exists,  is  not  created  by  law,  and  probably 

168 


SEPARATION    BEFORE    1865 

cannot  be  changed  by  law.  Whether  this  distinction  and 
prejudice,  existing  in  the  opinion  and  feelings  of  the  com- 
munity, would  not  be  as  effectually  fostered  by  compelling 
colored  and  white  children  to  associate  together  in  the  same 
schools,  may  well  be  doubted ;  at  all  events,  it  is  a  fair  and 
proper  question  for  the  committee  to  consider  and  decide 
upon,  having  in  view  the  best  interests  of  both  classes  of 
children  placed  under  their  superintendence,  and  we  cannot 
say,  that  their  decision  upon  it  is  not  founded  on  just 
grounds  of  reason  and  experience,  and  in  the  results  of  a 
discriminating  and  honest  judgment."  This  line  of  argu- 
ment is  familiar  to  those  who  have  studied  the  decisions 
of  Southern  courts  upon  the  separation  of  the  races  in 
schools,  in  public  conveyances,  hotels,  theatres,  and  other 
public  places. 

The  attitude  of  the  courts  and  legislatures  of  Indiana, 
Ohio,  and  Massachusetts,  not  one  of  which  is  a  Southern 
State,  toward  the  association  of  white  and  colored  school 
children  shows  that  there  was  ample  precedent  for  the  laws 
of  the  postbellum  period.  It  is  probable  that  a  careful 
examination  of  the  annual  statutes  of  the  other  States  be- 
fore 1865  would  reveal  that  separation  was  required  in 
them  also;  that  is,  where  any  provision  at  all  was  made 
for  the  public  instruction  of  Negroes.  For  instance,  the 
law  in  Delaware  27  in  1852  was  that  the  public  school  should 
be  free  to  all  white  children  of  the  district  over  five  years 
old.  The  inference  to  be  drawn  is  that  colored  children 
were  excluded. 


169 


SEPARATION    OF   RACES    IN    SCHOOLS 
PRESENT  EXTENT  OF   SEPARATION   IN   PUBLIC   SCHOOLS 

(a)  In  South 

It  is  a  matter  of  general  knowledge  that  white  and  col- 
ored children  are  not  permitted  to  attend  the  same  public 
schools  in  the  South.  The  separation  is  required  both  by 
State  Constitutions  and  statutes. 

The  Constitutions  of  Alabama  of  1875  28  and  1901 29 
provide  for  a  system  of  public  schools,  but  add  that  sep- 
arate schools  must  be  maintained  for  white  and  colored 
children.  The  laws  30  of  1868  have  this  provision :  "  In 
no  case  shall  it  be  lawful  to  unite  in  one  school  both  col- 
ored and  white  children,  unless  it  be  by  the  unanimous 
consent  of  the  parents  and  guardians  of  such  children ;  but 
said  trustees  shall  in  all  other  cases  provide  separate 
schools  for  both  white  and  colored  children."  The  separa- 
tion is  also  required  in  the  laws  of  1878  31  and  1884.32 

Arkansas  has  no  constitutional  provision  as  to  separa- 
tion, but  an  act33  of  1867  reads:  "No  Negro  or  mulatto 
shall  be  permitted  to  attend  any  public  school  in  this  State, 
except  such  schools  as  may  be  established  exclusively  for 
colored  persons."  And  a  statute  of  1873  34  declares  that 
the  board  of  education  must  provide  separate  schools. 

The  Constitution35  of  Florida  of  1887  provides  that 
white  and  colored  children  shall  not  be  taught  in  the  same 
school,  but  that  impartial  provision  shall  be  made  for  both. 
A  statute  36  of  1895,  which  will  be  considered  later,  makes 
it  a  penal  offence  to  educate  white  and  Negro  children  in 
the  same  schools,  whether  public  or  private  or  parochial. 

Under  a  Georgia  statute  3T  of  1866,  any  free  white  citi- 
zen between  the  ages  of  six  and  twenty-one  years  and  any 

170 


PRESENT  EXTENT  OF  SEPARATION  IN  PUBLIC  SCHOOLS 

disabled  and  indigent  soldier  of  the  State  under  the  age 
of  thirty  might  have  instruction  in  the  schools  free  of 
charge.  This  would  seem  to  leave  out  the  colored  children. 
But  the  Constitution38  of  1877  requires  separate  schools; 
so  do  the  laws  of  1872.38 

The  laws  of  Kentucky40  of  1870  provided  that  it 
should  be  the  duty  of  the  trustees  of  the  common  schools 
of  that  State  to  invite  and  encourage  indigent  white  chil- 
dren in  the  district  to  attend  the  school,  and  to  inform 
them  and  their  parents  that  such  was  their  right  for  which 
the  State  paid,  though  they  themselves  might  contribute 
toward  paying  the  expenses  of  the  school.  The  annual  re- 
port of  the  trustees  must  always  show  that  this  duty  had 
been  performed;  and  no  arrangement  should  be  made  for 
the  benefit  of  some  individuals  of  this  description  to  the 
exclusion  of  others.  Again,  apparently  no  provision  was 
made  for  the  colored  children,  but  the  Constitution  41  of 
1891  declares  that  in  the  distribution  of  the  school  fund 
no  distinction  shall  be  made  on  account  of  race  or  color, 
but  that  separate  schools  must  be  maintained.  The  stat- 
ute 42  of  1904,  under  which  the  Berea  College  case  arose, 
applies  to  both  public  and  private  schools  and  requires  a 
separation  of  the  races  in  both. 

The  government  of  Louisiana  was  early  in  the  hands 
of  the  Eeconstructionists,  as  its  statutes  show.  The  Con- 
stitution 43  of  1868  said :  "  There  shall  be  no  separate 
schools  or  institutions  of  learning  established  exclusively 
for  any  race  by  the  State  of  Louisiana."  A  separation  of 
the  races  in  schools  had  been  required  by  the  Constitutions 
of  1845  44  and  1852,45  which  makes  this  provision  of  the 
Constitution  of  1868  all  the  more  significant.  In  1871 

171 


SEPARATION  OF  RACES  IN  SCHOOLS 

provision  was  made  for  an  institution  for  the  instruction 
of  the  blind,  and  an  industrial  home  for  the  blind  at  Baton 
Eouge.  The  statute46  relative  to  these  concluded  thus: 
"...  no  part  of  this  act  shall  be  construed  so  as  to  de- 
prive any  person  on  account  of  race  or  color  of  the  priv- 
ilege of  admittance  to  the  institution."  A  law  47  of  1875 
which  established  an  agricultural  and  mechanical  college 
provided  that  there  should  be  no  discrimination  of  race  or 
color  in  the  admission,  management,  or  discipline  of  the 
institution.  The  Constitution  of  1879  did  not  expressly 
prohibit  the  separation  of  the  races  in  schools,  as  that  of 
1868  had  done,  but  on  the  other  hand  it  did  not  require 
separation.  It  seems,  rather,  to  have  left  the  matter  in  the 
hands  of  the  legislature.  The  first  reference  made  to  sep- 
arate schools  was  in  1880,  when  a  university  was  estab- 
lished for  the  education  of  persons  of  color,  called  the 
Southern  University,  four  of  the  twelve  trustees  of  which 
were  to  be  Negroes.48  Finally,  the  Constitution  49  of  1898 
requires  the  general  assembly  to  establish  free  public 
schools  for  the  white  and  colored  races. 

A  Maryland  statute50  of  1870  declared  that  all  the 
taxes  paid  for  school  purposes  by  the  colored  people  in  any 
county  or  in  the  city  of  Baltimore,  together  with  donations 
for  that  purpose,  should  be  set  aside  for  maintaining 
schools  for  colored  children.  The  school  commissioners 
were  given  power  to  make  further  appropriations  as  they 
should  deem  proper  to  assist  the  colored  schools.  A  law  51 
of  1872  provided  that  the  school  commissioners  should 
establish  one  or  more  public  schools  in  each  election  dis- 
trict for  colored  children,  which  must  be  kept  open  as  long 
as  the  other  public  schools  of  the  county  were  kept  open. 

172 


PRESENT  EXTENT  OF  SEPARATION  IN  PUBLIC  SCHOOLS 

They  are  subject  to  the  same  laws  and  must  furnish  in- 
struction in  the  same  branches  as  the  white  schools.  The 
taxes  paid  for  school  purposes  by  colored  persons  must  be 
devoted  to  the  maintenance  of  colored  schools.  This  is 
the  Maryland  law,52  in  substance,  as  it  exists  at  present, 
except  that  a  separate  school  does  not  have  to  be  provided 
in  each  election  district  unless  the  colored  population  in 
that  district  warrants  the  board  in  establishing  a  colored 
school.  Where  there  are  not  enough  Negroes  in  a  district 
to  have  a  school  of  their  own,  presumably,  they  go  to  the 
colored  schools  in  neighboring  districts. 

As  early  as  1878  a  statute  of  Mississippi 53  provided 
that  schools  should  be  arranged  in  each  county  so  as  to 
afford  ample  free  school  facilities  for  all  educable  youths 
in  the  county,  prohibiting  the  teaching  of  white  and  col- 
ored pupils  in  the  same  school-house,  and  the  Constitu- 
tion 54  of  1890  reiterated  this  requirement  of  separation. 
The  county  school  boards  are  given  power  to  locate  one  or 
more  schools  for  Indians  in  counties  where  there  are 
enough  Indians  to  form  a  school.56 

Missouri  seems  not  to  have  lost  an  opportunity  to 
express  its  belief  in  separate  schools  for  the  races.  The 
Constitution  56  of  1865  made  that  requirement,  adding  that 
the  school  fund  must  be  appropriated  in  proportion  to  the 
number  of  children  without  regard  to  color.  Such  sep- 
aration is  required  by  the  laws  of  1865,57  of  1868,58  of 
1869,59  by  the  Constitution  of  1875,60  and  by  a  law  of 
1889,61  which  last  made  it  unlawful  for  colored  children 
to  attend  a  white  school,  or  white  children,  a  colored  school. 

The  Constitution  of  North  Carolina 62  of  1875  declares 
that  "the  children  of  the  white  and  the  children  of  the 

173 


SEPARATION   OF   RACES   IN   SCHOOLS 

colored  shall  be  taught  in  separate  public  schools,  but  there 
shall  be  no  discrimination  made  in  favor  of,  or  to  the  preju- 
dice of  either  race."  According  to  the  statute  63  of  1901, 
a  child  descended  from  a  Negro  to  the  third  generation 
inclusive  should  not  attend  a  white  school.  This  was 
amended  64  in  1903  to  the  effect  that  no  child  with  Negro 
blood  in  his  veins,  "however  remote  the  strain,"  shall 
attend  a  school  for  the  white  race.  The  present  statute  63 
also  provides  that  the  descendants  of  Croatan  Indians  now 
living  in  Eobeson  and  Richmond  counties  shall  have  sep- 
arate schools  for  their  children.  It  will  be  remembered 
that  it  is  the  Croatan  Indians  who  are  prohibited  from 
intermarrying  with  Negroes. 

The  Territory  of  Oklahoma  68  had  the  following  pe- 
culiar arrangement  for  separate  schools  till  1901 :  In  each 
county  an  election  was  held  every  three  years  at  which 
all  the  qualified  school  electors  could  vote  for  or  against 
the  maintenance  of  separate  schools  in  that  county.  If  a 
majority  voted  against  separation,  then  the  white  and  col- 
ored children  might  attend  the  same  school ;  but  if  a  major- 
ity voted  for  separation  separate  schools  had  to  be  pro- 
vided. In  counties  which  separate  schools  were  voted  in 
the  schools  for  whites  and  blacks  had  to  be  equal  in  length 
of  terms  and  in  facilities.  Any  failure  to  comply  with  the 
law  rendered  the  act  for  establishing  separate  schools  void, 
and  immediately  the  schools  were  opened  to  both  races. 
In  1901 6T  separate  schools  were  required  all  over  the  Terri- 
tory. In  case  the  children  of  one  race  in  a  district  did 
not  exceed  ten,  they  were  to  be  transferred  to  a  school  for 
their  race  in  another  district  instead  of  a  separate  school 
being  maintained  for  them,  provided  the  distance  was  not 

174 


PRESENT  EXTENT  OP  SEPARATION  IN  PUBLIC  SCHOOLS 

over  two  miles  and  a  half.  The  white  and  colored  schools 
were  to  be  furnished  with  the  same  kind  of  furniture  and 
equipment.  No  white  teacher  should  teach  in  a  colored 
school  and  vice  versa.  The  Constitution 68  of  the  State  of 
Oklahoma,  adopted  September  17,  1907,  provides :  "  Sep- 
arate schools  for  white  and  colored  children,  with  like  ac- 
commodation, shall  be  provided  by  the  legislature  and 
impartially  maintained.  The  term  '  colored  children/  as 
used  in  this  section,  shall  be  construed  to  mean  children 
of  African  descent.  The  term  '  white  children '  shall  in- 
clude all  other  children."  An  Oklahoma  statute 69  of  1907 
requires  complete  separation  of  the  races  in  schools,  with 
impartial  facilities  for  both  races.  By  "  colored  children," 
it  means  those  that  have  any  "  quantum  of  Negro  blood." 
The  teacher  who  knowingly  and  willingly  permits  a  child 
of  one  race  to  be  taught  in  a  school  for  another  race  is 
guilty  of  a  misdemeanor,  and  may  be  punished  by  a  fine 
of  between  ten  and  a  hundred  dollars  and,  in  addition, 
may  have  his  certificate  cancelled  and  be  unable  to  secure 
another  for  a  year.  The  separation  applies  to  private 
schools  and  colleges  as  well  as  public  schools. 

The  South  Carolina  government  was,  like  that  of 
Louisiana,  early  under  Eeconstruction.  The  Constitu- 
tion 70  of  1868  provided  that  "  all  the  public  schools,  col- 
leges and  universities  of  this  State,  supported  in  whole  or 
in  part  by  the  public  school  fund,  should  be  free  and  open 
to  all  the  children  and  youths  of  that  State,  without  regard 
to  race  or  color.  In  fact,  the  University  of  South  Caro- 
lina was  open  to  Negroes  directly  after  the  War.71  But 
the  Constitution  72  of  1895  requires  separate  schools,  and 
adds  that  "  no  child  of  either  race  shall  ever  be  permitted 

175 


SEPARATION  OF  RACES  IN  SCHOOLS 

to  attend  a  school  provided  for  children  of  the  other  race." 
The  Negro  public  schools  of  the  city  of  Charleston  are 
taught  by  white  people,  mostly  Southern-born  white  people. 

Tennessee,  by  its  laws  73  of  1866,  by  its  Constitution 7* 
of  1870,  and  by  its  laws  75  of  1873  requires  separate  public 
schools  for  the  white  and  colored  children.  A  statute 76 
of  1901  prohibits  the  co-education  of  the  white  and  col- 
ored races  in  private  schools. 

The  Texas  Constitution  77  of  1876  provided  for  sep- 
arate schools  and  impartial  accommodations  for  both  races. 
A  school-house  constructed  in  part  by  voluntary  subscrip- 
tion by  colored  parents  and  guardians  and  for  a  colored 
school  community  shall  not  be  used  without  their  consent 
for  the  education  of  white  children,  and  vice  versa."38  The 
separate  school  requirement  was  repeated  in  the  laws  of 
1884,79  1893,80  and  1895.81  The  Texas  provision  is  that 
a  school  which  receives  both  white  and  colored  pupils  shall 
not  receive  any  of  the  public  school  fund,  which  amounts 
to  saying  that  it  is  not  unlawful  to  educate  white  and  col- 
ored children  together  in  private  schools. 

The  Constitution  of  Virginia  of  1870  did  not  declare 
that  the  races  must  be  separated  in  schools.  But  statutes 
of  1882  82  and  1896  ®3  provide  that  white  and  colored  per- 
sons shall  not  be  taught  in  the  same  school  but  in  separate 
schools,  under  the  same  general  regulations  as  to  manage- 
ment, usefulness,  and  efficiency.  The  Virginia  Constitu- 
tion **  of  1902  has  the  terse  statement  that  white  and  col- 
ored children  shall  not  be  taught  in  the  same  school. 


176 


PRESENT  EXTENT  OF  SEPARATION  IN  PUBLIC  SCHOOLS 

(6)  In  States  Outside  of  South 

Besides  the  Southern  States,  which  have  just  been  con- 
sidered, there  are  other  States  which  require  or  permit  a 
separation  of  the  races  in  schools.  The  separation  of  the 
white  and  Japanese  children  in  the  public  schools  of  San 
Francisco  has  already  been  discussed.  That  was  only  a 
part  of  the  legislation  of  California.  A  statute  85  enacted 
during  the  session  of  1869-70  read:  "The  education  of 
children  of  African  descent  and  Indian  children  shall  be 
provided  for  in  separate  schools.  Upon  the  written  appli- 
cation of  the  parents  or  guardians  of  at  least  ten  such  chil- 
dren to  the  board  of  trustees  or  board  of  education,  a  sep- 
arate school,  shall  be  established  for  the  education  of  such 
children ;  and  the  education  of  a  less  number  may  be  pro- 
vided for  by  the  trustees  in  separate  schools  in  any  other 
manner."  In  1874  a  Negro  child  was  refused  admission 
to  a  white  school  in  that  State.  In  a  test  case  which  arose 
the  constitutionality  of  the  statute  was  supported,  the 
court 88  being  of  opinion  that  the  statute  did  not  violate 
the  Fourteenth  Amendment  if  appropriate  schools  for  col- 
ored children  were  maintained.  But,  it  added,  unless  such 
separate  schools  are  actually  maintained,  colored  children 
must  be  admitted  to  the  regular  public  schools  along  with 
the  white  children.  This  latter  ruling  became  part  of  a 
statute  of  1880.  Prior  to  1880  the  law  had  been  that 
"every  school,  unless  otherwise  provided  by  law,  must  be 
open  for  the  admission  of  all  white  children.  .  .  ."  This 
was  amended  in  1880  87  by  the  omission  of  the  word 
"  white  "  and  by  repealing  the  sections  providing  for  Negro 
and  Indian  schools.  On  the  strength  of  this  amendment, 
13  177 


SEPARATION  OF  RACES  IN  SCHOOLS 

a  Negro,  upon  being  refused  admission  to  the  white  schools, 
brought  suit,88  and  it  was  held  that,  as  the  law  stood,  col- 
ored children  had  equal  rights  with  white  children  to  ad- 
mission to  any  public  school,  even  though  separate  schools 
were  maintained.  The  court  said:  "The  whole  policy  of 
the  legislative  department  of  the  government  upon  this 
matter  is  easily  gathered  from  the  course  of  legislation 
shown  therein;  and  there  can  be  no  doubt  but  that  it  was 
never  intended  that,  as  a  matter  of  classification  of  pupils, 
the  right  to  establish  separate  schools  for  children  of  Afri- 
can descent,  and  thereby  to  exclude  them  from  white  schools 
.  .  .  should  be  given  to  such  boards  [of  education]."  It 
was  earlier,  in  1872,  that  the  provision  for  separate  schools 
for  Mongolians  was  made.  The  law  of  California  seems 
now  to  be  that  Negro  children  may  attend  the  same  schools 
as  whites,  but  Japanese,  Chinese,  and  Korean  children 
must  go  to  separate  schools  if  the  board  of  education  sees 
fit  to  provide  them. 

The  legislature  of  Delaware,89  in  1881,  appropriated 
two  thousand  four  hundred  dollars  annually  for  the  educa- 
tion of  colored  children.  In  1889  three  colored  schools  90 
were  incorporated  and  placed  in  control  of  boards  of  trus- 
tees elected  by  the  voters  of  the  district.  These  incorpo- 
rated schools  91  as  such  were  abolished  in  1893,  and  after 
that  they  were  placed  under  the  supervision  of  the  regular 
county  superintendent  just  as  the  other  public  schools. 
The  same  State,92  in  1898,  provided  for  the  establishment 
of  separate  kindergartens.  Thus,  Delaware  is  as  strict  as 
the  Southern  States  in  requiring  separate  schools  for  the 
races. 

Although  the  Illinois  statutes  93  clearly  state  that  any 
178 


PRESENT  EXTENT  OF  SEPARATION  IN  PUBLIC  SCHOOLS 

school  officer  who  excludes  from  a  public  school  any  child 
on  account  of  color  shall  be  fined  from  five  dollars  to  one 
hundred  dollars  for  each  offence,  and  prohibits  school  direc- 
tors and  officers  from  excluding,  directly  or  indirectly,  chil- 
dren on  account  of  color,  still  the  numerous  cases  which 
have  arisen  involving  the  point  show  that  the  school  offi- 
cers have  not  always  been  in  thorough  agreement  with 
the  law. 

In  1874  the  school  directors  of  McLean  County,  Illinois, 
erected  a  separate  school  building,  twelve  by  fourteen  feet, 
for  the  exclusive  purpose  of  educating  the  three  or  four 
colored  children  in  the  district  therein.  It  was  admitted 
that  there  was  plenty  of  room  for  them  in  the  regular 
school  building.  One- of  the  taxpayers  of  the  district  peti- 
tioned for  an  injunction  against  the  building  of  the  house, 
but  it  was  completed  before  any  decision  was  rendered.  In 
a  case  which  arose  later,  the  court94  held  that  the  school 
directors  had  no  right  to  make  such  a  discrimination 
against  Negroes,  and  that  any  taxpayer  might  object.  In 
1882  the  board  of  education  of  Quincy,  Illinois,  divided  the 
city  into  eight  districts  and  set  apart  one  school  for  Ne- 
groes. A  case  arising  over  this  division  and  segregation, 
the  court 95  ruled  that,  in  the  absence  of  State  legislation, 
the  board  had  no  power  to  establish  separate  schools  for 
Negroes.  In  1886  the  school  board  of  Upper  Alton  passed 
a  resolution  excluding  colored  children  from  the  white 
school  unless  they  had  reached  the  high  school  grade.  A 
Negro,  whose  children  below  high  school  grade  were  re- 
fused admission  to  the  white  school,  brought  suit,  and  the 
court96  held  that  the  school  board  had  no  power  to  sep- 
arate the  children  on  account  of  color.  In  1899  the  com- 

179 


SEPARATION   OF  RACES   IN   SCHOOLS 

mon  council  of  Alton  established  a  school  for  Negroes,  but 
the  court97  held  that  this  involved  an  illegal  discrimina- 
tion against  them.  The  Associated  Press  report 98  of  No- 
vember 28,  1906,  had  the  following  statement :  "  East  St. 
Louis,  111.,  Nov.  28,  1906 — A  large  brick  building  at  1,400 
Missouri  avenue,  which  was  leased  last  week  by  the  Board 
of  Education  for  a  Negro  school,  was  destroyed  by  fire 
to-day,  and  there  is  evidence  that  prejudice  against  the 
establishment  of  a  school  for  Negroes  caused  the  building 
to  be  set  on  fire.  Late  last  night  the  building  was  discov- 
ered to  be  on  fire,  but  prompt  action  saved  it.  The  fire- 
men found  rags  soaked  in  oil  on  the  second  floor  hallway. 
The  destruction  of  the  building  to-day  makes  the  second 
building  leased  for  a  Negro  school  that  has  been  burned 
within  the  last  two  weeks."  The  latest  Illinois  case  on  the 
subject  is  that  of  April  23,  1908,  The  People  v.  The  Mayor, 
etc.,  of  Alton.99  A  Negro's  children  were  excluded  from 
the  public  school  most  convenient  to  them  and  directed 
to  a  colored  school  less  convenient.  He  petitioned  for  a 
writ  of  mandamus  against  the  mayor  and  common  council 
to  compel  them  to  admit  his  children  to  the  most  con- 
venient school,  and  after  the  case  had  been  tried  seven 
times  by  juries  in  the  circuit  court,  the  writ  was  finally 
granted  by  the  Supreme  Court.  Although  all  of  these 
cases  were  decided  against  race  separation  they  show  that 
there  is  still  an  appreciable  feeling  in  Illinois  against  the 
white  and  colored  children  being  taught  in  the  same 
schools.  The  trouble  at  Alton  is  not  yet  over.  After  a 
fourteen  years'  fight  the  Negroes  won,  as  has  been  seen,  be- 
fore the  Supreme  Court  of  the  State.  But  when  the  Negro 
children  applied  for  admission  to  the  public  schools,  they 

180 


PRESENT  EXTENT  OF  SEPARATION  IN  PUBLIC  SCHOOLS 

were  again  refused.  Before  the  schools  were  opened  for 
the  session  of  1908-09,  many  of  the  Negroes  were  visited 
and  induced  to  send  their  children  to  the  four  Negro 
schools  built  in  Alton.  But  forty  other  Negroes  filed  a 
petition  for  a  writ  of  mandamus  against  the  mayor  and 
council  of  Alton  seeking  to  have  them  answer  why  they 
refused  to  obey  the  mandate  of  the  Supreme  Court  of 
the  State.100 

A  statute  101  of  Indiana  of  1869  required  the  trustees 
of  schools  to  organize  separate  but  equal  schools  for 
Negroes.  If  there  were  not  enough  Negroes  in  the  district 
for  a  school,  two  or  more  districts  might  be  consolidated 
for  that  purpose.  If  there  were  not  enough  within  a  rea- 
sonable distance,  then  the  trustees  might  provide  such 
other  means  of  education  of  colored  children  as  would  em- 
ploy their  proportion  of  the  school  fund  to  the  best  advan- 
tage. A  case  102  testing  the  constitutionality  of  this  law, 
which  arose  in  1874,  is  one  of  the  most  exhaustive  cases 
on  the  subject.  The  father  of  Negro  children  applied  for 
a  mandate  to  compel  the  admission  of  them  to  white 
schools.  The  court  held  that  the  separation  of  the  races 
in  schools  is  not  in  violation  of  the  Federal  or  the  State 
Constitution.  The  common  schools,  it  was  said,  are  based 
upon  State  legislation,  are  domestic  institutions,  and,  as 
such,  subject  to  the  exclusive  control  of  the  constituted 
authorities  of  the  State.  The  Federal  Constitution  does 
not  provide  for  any  general  system  of  education  to  be  con- 
ducted and  controlled  by  the  national  government,  nor 
does  it  vest  in  Congress  any  power  to  exercise  a  general  or 
special  supervision  over  the  State  on  the  subject  of  educa- 
tion. Under  the  Constitution  of  Indiana  the  common 

181 


SEPARATION  OF  RACES  IN  SCHOOLS 

school  s}'stem  must  be  general,  uniform,  and  equally  open 
to  all,  but  uniformity  will  be  secured  where  all  schools  of 
the  same  grade  have  the  same  system  of  government  and 
discipline,  the  same  branches  of  learning  taught,  and  the 
same  qualifications  for  admission.  The  court  said :  "  In 
our  opinion  the  classification  of  scholars  on  the  basis  of 
race  or  color,  and  their  education  in  separate  schools,  in- 
volve questions  of  domestic  policy  which  are  within  the 
legislative  discretion  and  control,  and  do  not  amount  to 
an  exclusion  of  either  class  .  .  .  there  would  be  as  much 
lawful  reason  for  complaint  by  one  scholar  in  the  same 
school  that  he  could  not  occupy  the  seat  of  another  scholar 
therein  at  the  same  time  the  latter  occupied  it,  or  by  schol- 
ars in  different  classes  in  the  same  school,  that  they  were 
not  placed  in  the  same  class,  or  by  scholars  in  different 
schools,  that  they  were  not  all  placed  in  the  same  school,  as 
there  is  that  black  and  white  children  are  placed  in  distinct 
classes  and  taught  in  separate  schools." 

In  1877,  the  Indiana  law  of  1869  was  amended  103  so 
that  the  school  directors  might  (not  must)  organize  sepa- 
rate schools  for  the  races.  In  case  a  colored  school  was 
not  provided,  the  colored  children  should  be  allowed  to 
attend  the  regular  white  school.  When  the  colored  child 
had  reached  a  grade  higher  than  that  taught  in  the  colored 
school,  he  must  be  admitted  to  the  regular  high  school,  and 
no  distinction  therein  should  be  made  on  account  of  race 
or  color.  In  1882,  there  were  only  about  six  Negro  chil- 
dren in  a  certain  district,  and  the  trustees  were  indicted 
for  not  establishing  a  separate  school  for  them.  The 
court 104  ruled  that  it  was  impracticable  to  maintain  a 
separate  school  for  so  small  a  number.  In  1883,  a  Negro 

182 


PRESENT  EXTENT  OF  SEPARATION  IN  PUBLIC  SCHOOLS 

pupil  brought  suit  on  the  ground  that  he  was  not  admitted 
to  the  white  high  school,  under  the  law  of  1877,  but  he 
did  not  show  that  he  had  passed  the  required  examination. 
The  court 105  held  that  the  discretion  as  to  the  competency 
of  the  child  is  a  matter  for  the  board  of  education,  not 
the  court. 

The  laws  of  Iowa  have  not  since  1865  required  or  per- 
mitted a  separation  of  the  races  in  schools.  In  1868,  a 
Negro  girl,  denied  admission  to  the  graded  schools  of  Mus- 
catine,  brought  suit,  and  the  court 108  gave  relief,  saying 
that  the  school  directors  could  not  require  Negroes  to  at- 
tend separate  schools;  that  if  separate  schools  for  Negroes 
are  prescribed,  the  same  might  as  well  be  done  for  German, 
Irish,  and  French  children.  The  same  principle  has  been 
affirmed  in  subsequent  decisions  which  show  that  there 
have  been  instances  in  that  State  of  school  boards  trying 
to  separate  the  races.107 

By  the  statues  108  of  Kansas  of  1868  the  boards  of  edu- 
cation of  cities  of  the  first  class — that  is,  cities  of  over 
150,000  inhabitants — had  the  "  power  to  organize  and 
maintain  separate  schools  for  the  education  of  white  and 
colored  children."  This  power  was  omitted  in  a  revision 
of  the  school  law  109  in  1876,  and  consequently  repealed  by 
implication.  But  in  1879  a  statute  110  was  passed  amend- 
ing the  school  law,  which  revived  the  power  to  separate  the 
races  in  cities  of  the  first  class  "  except  in  the  high  school, 
where  no  discrimination  shall  be  made  on  account  of 
color."  The  constitutionality  of  this  statute  was  upheld 
by  the  Supreme  Court  m  of  Kansas  in  1903,  and  again  in 
1909.  The  State  has  not  given  this  power  of  separation 
to  cities  of  the  second  class,  so  the  courts  112  have  held  that, 

183 


SEPARATION  OF  RACES  IN  SCHOOLS 

except  in  cities  of  the  first  class,  the  colored  children  must 
be  admitted  to  the  schools  along  with  the  white  children. 
The  Superintendent  of  Public  Schools  of  Kansas,113  in 
August,  1906,  said:  "There  is  a  movement  in  Kansas 
looking  toward  the  segregation  of  the  races  in  the  public 
schools,  where  the  per  cent,  of  colored  population  will  war- 
rant the  separation. 

A  law  114  of  Nevada  of  1865  excluded  Negroes,  Mon- 
golians, and  Indians  from  the  public  schools,  and  pre- 
scribed as  a  punishment  to  the  school  opening  its  doors  to 
all  races  a  withdrawal  of  its  share  of  the  public  school  fund. 
The  school  officials  might,  however,  if  they  deemed  it  ad- 
visable, establish  a  separate  school  for  the  children  of 
Negroes,  Mongolians,  and  Indians,  to  be  supported  out  of 
the  public  school  fund.  In  1872  it  was  held  115  that  a 
mandamus  would  lie  compelling  trustees  to  admit  colored 
persons  to  the  public  schools  where  separate  schools  were 
not  provided  for  such  persons.  No  subsequent  reference  to 
the  subject  appears  in  the  statutes  or  reports,  so  it  may 
be  assumed  that  separate  schools  no  longer  exist  in 
Nevada. 

A  statute 11S  of  New  Jersey  of  1881  made  it  unlawful 
to  exclude  anyone  from  the  public  school  on  account  of 
"  religion,  nationality,  or  color."  The  town  of  Burlington 
had  four  public  schools,  one  of  which  had  been  set  apart 
for  Negroes.  A  Negro  petitioned  for  a  writ  of  mandamus 
to  compel  the  trustees  to  admit  his  children  to  the  white 
schools,  and  the  court 117  issued  the  writ.  About  four 
years  ago  the  public  schools  of  East  Orange,  New  Jersey, 
adopted  the  policy  of  teaching  the  Negro  pupils  in  sepa- 
rate classes ;  but  it  was  soon  abandoned  because,  the  school 

184 


PRESENT  EXTENT  OF  SEPARATION  IN  PUBLIC  SCHOOLS 

authorities  said,  "it  seemed  like  going  back  to  old 
ideas."  118 

The  city  of  Buffalo,  New  York,  under  a  provision  of 
its  charter,  established  separate  schools  for  Negroes,  and 
this  action  was  upheld  by  the  court 119  on  the  ground  that 
the  right  to  attend  common  schools  is  a  legislative  grant 
and  not  a  constitutional  guarantee.  The  city  of  Albany 
also  set  apart  one  school  for  Negroes,  and  this  was  held  12° 
constitutional  in  1872.  And  in  1883,  the  Supreme  Court 121 
of  that  State  held  that,  if  separate  schools  are  provided 
for  colored  children,  they  may  be  excluded  from  the  white 
schools.  In  1899,  the  same  was  held  122  for  the  Borough 
of  Queens.  These  decisions  were  under  the  law  of  1864,123 
reenacted  in  1894/2*  which  gave  power  to  the  school  au- 
thorities of  cities  and  incorporated  villages,  when  they 
deemed  it  expedient,  to  establish  separate  schools.  But 
this  law  was  repealed  in  1900,125  and  the  present  law  reads : 
"  No  person  shall  be  refused  admission  to  or  be  excluded 
from  any  public  school  in  the  State  of  New  York  on  ac- 
count of  race  or  color." 

An  Ohio  statute  126  of  1878  gave  the  boards  of  educa- 
tion discretionary  power  to  establish  separate  schools  for 
Negroes.  This  law  was  repealed  in  1887,127  and  thereafter 
all  public  schools  were  open  to  colored  children.128 

In  1869,  persons  of  color  were  not  admitted  to  the  sub- 
district  schools  of  Pittsburg,  Pennsylvania,129  but  this  law 
was  repealed  in  1872.130  An  earlier  statute  of  1854  had 
provided  for  separate  schools  for  Negroes  where  there  were 
more  than  twenty  in  the  district.  The  school  directors  of 
Wilkesbarre  had  united  two  districts,  each  having  less 
than  twenty  colored  children,  and  put  up  a  school  building 

185 


SEPARATION    OF   RACES    IN    SCHOOLS 

for  Negroes ;  but  the  court 131  held  that  this  was  in  viola- 
tion of  the  law  of  1854.  This  law  was  repealed  in  1881,132 
and  it  was  thereafter  unlawful  to  make  any  distinction 
whatever  on  account  of  race  or  color.  The  next  year,  it 
was  held  133  that  the  school  directors  could  not  keep  open 
schools  for  Negroes  exclusively. 

A  West  Virginia  law  134  of  1865  required  the  boards 
of  education  to  establish  separate  schools  for  Negroes 
where  there  were  more  than  thirty  children  of  that  race 
in  the  district.  But  if  the  average  daily  attendance  was 
less  than  fifteen  for  a  month,  the  school  should  be  discon- 
tinued for  any  period  not  exceeding  six  months.  If  there 
were  less  than  thirty  children  in  the  district  or  the  attend- 
ance was  less  than  fifteen,  the  money  should  be  reserved 
and  used  for  colored  education  as  the  board  thought  best. 
A  statute  135  of  1871  and  the  Constitution  136  of  1872  pro- 
vided that  white  and  colored  persons  should  not  be  taught 
together.  A  separate  school  for  Negroes  must  be  estab- 
lished when  the  number  in  the  district  exceeds  twenty- 
five.  If  less,  the  trustees  of  two  or  more  districts  may  es- 
tablish a  joint  school.  The  Supreme  Court 13T  of  that  State 
has  held  that  the  constitutional  provision  requiring  sepa- 
rate schools  does  not  violate  the  Fourteenth  Amendment, 
but  that  the  terms  of  the  schools  of  both  races  must  be  of 
the  same  length.  Thus,  West  Virginia  is  as  strict  as  Vir- 
ginia or  any  Southern  State  in  separating  the  races  in 
schools. 

Wyoming  has  the  following  statute  138 :  "  When  there 
are  fifteen  or  more  colored  children  within  any  school 
district,  the  board  of  directors  thereof,  with  the  approval 
of  the  county  superintendent  of  schools,  may  provide 

186 


PRESENT  EXTENT  OF  SEPARATION  IN  PUBLIC  SCHOOLS 

a  separate  school  for  the  instruction  of  such  colored 
children." 

The  statutes  139  of  Arizona,  until  1909,  declared  that 
no  child  should  be  refused  admission  to  any  public  school 
on  account  of  race  or  color.  Last  year,  however,  the  school 
law  of  that  Territory  was  amended  14°  so  as  to  give  the 
board  of  trustees  of  school  districts  power,  when  they  deem 
it  advisable,  to  segregate  pupils  of  the  African  from  pupils 
of  the  white  race  and  to  provide  all  accommodations  made 
necessary  by  such  segregation,  but  the  power  to  segregate 
shall  be  exercised  only  where  the  number  of  pupils  of  the 
African  race  shall  exceed  eight  in  any  school  district.  This 
amendment  was  passed  over  the  Governor's  veto  by  a  two- 
thirds'  vote  of  the  legislature. 

The  Constitutions  of  Colorado141  of  1876  and  of 
Idaho  142  of  1889  provide  that  no  distinction  or  classifica- 
tion of  pupils  shall  be  made  on  account  of  race  or  color, 
and  the  judicial  decisions  of  those  States  do  not  show  any 
attempts  by  the  school  boards  to  draw  color  lines. 

Separate  schools  were  abolished  by  law  in  Massachu- 
setts in  1857.143  The  present  statute144  declares  that  no 
child  shall  be  excluded  from  a  public  school  of  any  city 
or  town  on  account  of  race  or  color.  In  practice,  the  mat- 
ter is  not  entirely  at  rest  in  Massachusetts. 

The  law145  of  Michigan  prohibits  the  segregation  of 
the  races  in  schools.  Because  of  objections  made  by  white 
students,  two  Negroes,146  in  1908,  were  refused  admission 
to  the  Grand  Rapids,  Michigan,  Medical  College,  a  private 
institution.  The  Negroes  appealed  to  the  State  circuit 
court,  which  issued  a  writ  of  mandamus  compelling  the 
school  to  admit  them.  When  this  was  granted  and  they 

187 


SEPAKATION    OF   RACES    IN    SCHOOLS 

were  accordingly  admitted,  thirty-four  members  of  the 
junior  class  of  the  school  "  struck,"  and  the  authorities  sus- 
pended the  class  for  a  time.  The  Supreme  Court 147  of 
Michigan  later  reversed  the  order  granting  the  writ  of 
mandamus,  saying  that  a  private  institution  of  learning, 
though  incorporated,  has  a  right  to  say  whom  it  will  receive. 
A  statute  148  of  Minnesota  declares  that  a  district  shall 
not  classify  its  pupils  with  reference  to  race  or  color,  nor 
separate  them  into  different  schools  or  departments  upon 
such  grounds.  The  punishment  for  violation  of  this  law 
by  a  district  is  a  forfeiture  of  its  share  of  the  public  school 
fund  so  long  as  the  classification  or  separation  continues. 
The  Territory  of  New  Mexico  149  makes  it  a  misdemeanor 
for  a  teacher  or  school  director  to  exclude  any  child  on 
account  of  race  or  nationality,  under  penalty  of  a  fine  from 
fifty  dollars  to  one  hundred  dollars  and  three  months  im- 
prisonment, and  being  forever  barred  from  teaching  school 
or  holding  any  office  of  profit  or  honor  in  the  Territory. 

The  separation  of  the  races  in  public  schools  is  required 
by  the  Constitutions  of  Alabama,  Florida,  Georgia,  Ken- 
tucky, Louisiana,  Mississippi,  North  Carolina,  Oklahoma, 
South  Carolina,  Tennessee,  Texas,  Virginia,  and  West  Vir- 
ginia. Complete  separation  is  required  by  statute  in  all 
of  the  above-named  States  and,  besides  those,  also  in  Ar- 
kansas, Maryland,  and  Delaware.  A  discretionary  power 
is  given  to  the  school  boards  to  establish  separate  schools 
in  Arizona;  in  Indiana;  in  California,  as  to  schools  for 
Indians,  Chinese,  and  Mongolians;  in  Kansas,  in  cities  of 
over  150,000  inhabitants;  and  in  Wyoming,  in  districts 
having  fifteen  or  more  colored  pupils.  The  following 

188 


PRESENT  EXTENT  OF  SEPARATION  IN  PUBLIC  SCHOOLS 

States  that  once  had  separate  schools  now  prohibit  them: 
Illinois,  Massachusetts,  Nevada,  New  Jersey,  New  York, 
Ohio,  and  Pennsylvania.  In  addition  to  these,  separate 
schools  are  not  allowed  in  Colorado,  Idaho,  Iowa,  Michi- 
gan, Minnesota,  New  Mexico,  and  Ehode  Island.  There 
are  other  States  which  have  never  seen  fit  to  make  any 
mention  one  way  or  the  other  of  race  distinctions  in 
schools,  either  in  statutes  or  court  reports;  so  one  is  war- 
ranted in  inferring  that  the  schools  are  open  to  all.  They 
are  Connecticut,  Maine,  Montana,  New  Hampshire,  North 
Dakota,  Oregon,  South  Dakota,  Utah,  Vermont,  Wiscon- 
sin, and  Washington. 

As  has  already  been  said,  public  education  is  distinctly 
a  State  function.  The  Federal  government,  in  the  main, 
has  not  undertaken  to  have  anything  to  do  with  it,  but 
Congress,  by  its  exclusive  jurisdiction,  has  supreme  control 
over  the  public  schools  of  the  District  of  Columbia,  and 
the  provisions  that  it  has  made  there  for  the  separation  of 
the  races  show  in  an  interesting  way  the  attitude  of  the 
national  government  upon  the  subject.  A  statute  15°  of 
1864  reads :  "  That  any  white  resident  of  said  county  shall 
be  privileged  to  place  his  or  her  child  or  ward  at  any  one 
of  the  schools  provided  for  the  education  of  white  children 
in  said  county  he  or  she  may  think  proper  to  select,  with 
the  consent  of  the  trustees  of  both  districts;  and  any  col- 
ored resident  shall  have  the  same  rights  with  respect  to 
colored  schools. 

"  That  it  shall  be  the  duty  of  said  commissioners  to 
provide  suitable  and  convenient  houses  or  rooms  for  hold- 
ing schools  for  colored  children.  .  .  ."  The  commis- 
sioner might  impose  a  tax  of  fifty  cents  per  capita  upon 

189 


SEPARATION  OF  RACES  IN  SCHOOLS 

the  patrons  of  the  school  to  aid  in  its  support,  but  no  child 
should  be  excluded  because  its  parents  or  guardians  could 
not  pay  the  tax.  The  school  fund  was  to  be  divided  in 
proportion  to  the  number  of  school  children,  regardless  of 
race. 

In  1890  an  increase  of  the  Federal  appropriation  151  to 
schools  was  accompanied  with  the  following  proviso: 
"  That  no  money  shall  be  paid  out  under  this  act  to  any 
State  or  Territory  for  the  support  or  maintenance  of  a 
college  where  a  distinction  of  race  or  color  is  made  on  the 
admission  of  students,  but  the  establishment  and  main- 
tenance of  such  colleges  separately  for  white  and  colored 
students  shall  be  held  to  be  a  compliance  with  the  pro- 
visions of  the  act,  if  the  funds  received  in  such  State  or 
territory  be  equitably  divided  as  hereinafter  set  forth." 


SEPARATION   IN   PRIVATE    SCHOOLS 

Thus  far,  except  in  the  matter  of  Berea  College,  the 
separation  of  the  races  in  private  schools  only  has  been 
considered.  Legislation  as  to  private  schools  is  compar- 
atively meagre.  A  statute  152  of  Florida  of  1895  makes  it 
a  penal  offence  to  conduct  a  school  of  any  grade — public, 
private,  or  parochial — wherein  white  persons  and  Negroes 
are  instructed  or  boarded  within  the  same  building,  or 
taught  in  the  same  class,  or  at  the  same  time  by  the  same 
teacher.  The  punishment  for  violating  the  law  by  pat- 
ronizing or  teaching  in  such  a  school  is  a  fine  of  from 
one  hundred  and  fifty  to  five  hundred  dollars,  or  im- 
prisonment from  three  to  six  months.  A  statute 153  of 
Tennessee  of  1901  makes  it  lawful  for  any  school,  acad- 

190 


SEPAEATION    IN    PRIVATE    SCHOOLS 

emy,  or  other  place  of  learning  to  receive  both  white  and 
colored  pupils  at  the  same  time.  It  is  unlawful  for  any 
teacher  to  allow  them  to  attend  the  same  school  or  to  teach 
them  together  or  to  allow  them  to  be  taught  together,  under 
a  penalty  of  fifty  dollars  for  each  offence  and  imprisonment 
from  thirty  days  to  six  months.  The  most  recent  statute 
on  the  subject  of  private  schools  is  that  of  Oklahoma  in 
1908.  It  is  plainly  modeled  after  the  Kentucky  law  of 
1904.  Under  the  Oklahoma  statute,154  it  is  unlawful  for  a 
person,  corporation,  or  association  of  persons  to  maintain 
or  operate  any  college,  school,  or  institution  where  persons 
of  the  white  and  colored  races  are  both  received  as  pupils 
for  instruction.  The  person,  corporation,  or  association 
that  operates  a  school  in  violation  of  the  statute  is  guilty 
of  a  misdemeanor,  and  may  be  fined  not  less  than  one 
hundred  nor  more  than  five  hundred  dollars.  Each  day 
such  a  school  is  kept  open  is  a  separate  offence.  One  who 
teaches  in  such  a  school  is  guilty  of  a  misdemeanor  and 
may  be  fined  from  ten  to  fifty  dollars  for  each  day.  One 
who  goes  to  such  a  school  as  a  pupil  may  be  fined  from  five 
to  twenty  dollars  for  each  day.  It  is  not  unlawful,  how- 
ever, for  a  private  school  to  maintain  a  separate  and  dis- 
tinct branch  thereof  "  in  a  different  locality."  The  Ken- 
tucky statute,  it  will  be  remembered,  required  the  separate 
branch  to  be,  at  least,  twenty-five  miles  from  the  main 
school.  The  Oklahoma  legislature  declared  that  it  was 
necessary  "for  the  immediate  preservation  of  the  pub- 
lic peace,  health,  and  safety "  that  this  act  take  effect 
at  once. 

Florida,  Kentucky,  Oklahoma,  and  Tennessee  are  the 
only  States  that  expressly  prohibit  the  teaching  of  white 

191 


SEPARATION  OF  RACES  IN  SCHOOLS 

and  colored  persons  in  the  same  private  school.  Other 
States — as  Georgia  and  Texas — declare  that,  if  a  school 
admits  both  races,  it  shall  have  none  of  the  publifc  school 
fund,  saying,  by  implication,  that  one  may  operate  a  school 
for  both  races  if  he  will  give  up  his  claim  to  State  aid. 
On  the  other  hand,  Minnesota  has  enacted  a  statute  to  the 
effect  that,  if  a  school  refuses  to  admit  pupils  of  both  races, 
it  shall  have  none  of  the  public  school  fund,  thus  saying, 
by  implication,  that  it  is  not  unlawful  to  conduct  a  private 
school  exclusively  for  one  race.  The  recent  decision  of  the 
Supreme  Court  of  Michigan  to  the  effect  that  a  private 
school  may  exclude  Negroes  even  though  the  law  of  the 
State  requires  public  schools  to  be  open  to  all,  regardless 
of  race  or  color,  has  been  considered. 


EQUALITY   OF   ACCOMMODATIONS 

In  general,  the  "  accommodations,  advantages,  and  fa- 
cilities "  of  schools  for  Negroes  are  to  be  equal  to  those 
for  white  children,  but  the  requirement  has,  in  many  cases, 
been  loosely  construed.  It  has  been  held  in  Missouri 155 
and  Ohio,158  for  instance,  that  it  is  not  an  unjust  dis- 
crimination for  the  colored  children  to  have  to  walk 
farther  to  school  than  the  white  children.  The  Supreme 
Court 157  of  Kansas  in  1903  decided  that  uniformity  of 
schools  for  white  and  colored  children  did  not  require 
equality  of  buildings.  The  court  said :  "  True,  for  the  ac- 
commodation of  a  numerous  white  population  a  much 
larger  and  more  imposing  school  building  is  provided  than 
that  set  apart  for  the  few  colored  children  in  the  district. 
This,  however,  is  but  an  incidental  matter,  and  necessarily 

192 


EQUALITY   OF    ACCOMMODATIONS 

unavoidable  in  the  administration  of  any  extended  school 
system.  School-houses  cannot  be  identical  in  every  respect; 
but  parents  cannot,  on  this  account,  dictate  the  one  their 
children  shall  attend." 

The  County  Board  of  Education  of  Eichmond  County, 
Georgia,  in  1880,  established  a  high  school  for  Negroes, 
but  in  1897  it  was  discontinued  for  economic  reasons,  be- 
cause the  money  to  educate  fifty  or  sixty  Negroes  in  the 
high  school  would  give  the  rudiments  of  education  to  two 
hundred  of  the  four  hundred  young  Negroes  in  the  county 
who  were  crowded  out.  It  was  understood  that  the  school 
would  be  re-opened  as  soon  as  economic  considerations  per- 
mitted. A  Negro  brought  suit  against  the  board  for  dis- 
crimination against  his  race  in  that  the  white  high  school 
to  which  the  Board  made  contributions  had  not  been  closed 
also.  The  Supreme  Court  of  that  State  held  158  that  the 
Board  had  the  right  to  establish  or  discontinue  high  schools 
when  the  interests  and  convenience  of  the  people  require  it. 
There  were  more  white  children  of  the  high-school  grade 
than  colored;  therefore,  the  court  argued,  the  Board  was 
justified  in  continuing  the  white  high  school.  The  case  was 
appealed  to  the  Supreme  Court159  of  the  United  States, 
which  affirmed  the  decision  of  the  State  court.  Mr.  Jus- 
tice Harlan,  delivering  the  opinion  of  the  court,  said: 
"...  while  all  admit  that  the  benefits  and  burdens  of 
public  taxation  must  be  shared  by  the  citizens  without  dis- 
crimination against  any  class  on  account  of  their  race, 
the  education  of  the  people  in  the  schools  maintained  by 
State  taxation  is  a  matter  belonging  to  the  respective 
States,  and  any  interference  on  the  part  of  the  Federal 
authority  with  the  management  of  such  schools  cannot  be 
14  193 


SEPARATION    OF   RACES    IN    SCHOOLS 

justified  except  in  the  case  of  clear  and  unmistakable  dis- 
regard of  rights  secured  by  the  supreme  law  of  the  land." 
In  general,  where  separate  schools  are  required,  it  is 
said  that  they  must  be  equal  for  both  races;  but  it  has 
been  held  that  it  is  not  an  unjust  discrimination  to  build 
more  imposing  school-houses  for  the  many  white  children 
than  for  the  few  colored  children;  to  require  the  children 
of  one  race  to  walk  farther  to  school  than  the  other,  or  to 
maintain  high  schools  for  one  race  without  doing  so  for  the 
other.  Only  a  very  few  States  have  escaped  altogether  the 
f  question  of  the  separation  of  the  races  in  schools.  Even 

where  the  State  statutes  have  declared  point-blank  by 
statute  that  there  shall  be  no  distinction  on  account  of  race 
or  color,  the  suits  that  have  arisen  in  those  States  show 
that  the  school  boards  have  tried  to  evade  the  law. 


DIVISION   OP   PUBLIC    SCHOOL   FUND 

It  is  commonly  believed  that  the  Negro  has  had  and 
is  now  getting  much  more  than  his  share  of  the  public 
school  fund.  It  is  said  that  the  Negro  is  getting  nearly 
half  the  money,  while  he  is  paying  only  a  very  small  per- 
centage of  the  taxes.  Thus,  the  following  is  the  estimate 
of  Mr.  J.  Y.  Joyner,  Superintendent  of  Public  Instruction 
of  North  Carolina:  "Upon  the  most  liberal  estimate,  it 
seems  that  in  1908  the  Negroes  received  for  the  mainte- 
nance of  their  public  schools  in  North  Carolina  about  twice 
as  much  as  they  paid  directly  or  indirectly  for  this  pur- 
pose. I  think  that  this  is  about  in  accordance  with  the 
experience  and  observation  of  those  familiar  with  the  ad- 
ministration of  the  public  schools  in  North  Carolina.  My 

194 


DIVISION    OF    PUBLIC    SCHOOL    FUND 

own  opinion  is  that  the  white  people  pay,  directly  or  in- 
directly, for  the  education  of  the  Negro  more  rather  than 
less  than  one  dollar  for  every  dollar  that  the  Negro  pays, 
directly  or  indirectly  for  that  purpose."  Mr.  J.  D.  Eg- 
gleston,  Jr.,  Superintendent  of  Public  Instruction  of  Vir- 
ginia, estimates  that  the  public  school  fund  for  Negroes  in 
that  State  is  $500,000,  of  which  the  Negro  pays  $87,000, 
or  less  than  one-fifth.160 

There  have  been  fitful  efforts  from  time  to  time  to  di- 
vide the  public  school  fund  in  proportion  to  the  amount 
of  taxes  paid  by  each  race.  The  most  recent  and  thorough- 
going effort 161  to  have  the  school  fund  so  apportioned  was 
made  by  Ex-Governor  James  K.  Vardaman,  of  Mississippi. 
But  his  effort,  like  that  of  those  before  him,  came  to 
naught.  The  white  taxpayers  of  the  South  have  not  shown 
any  very  evident  desire  to  withdraw  their  financial  aid 
from  the  colored  public  schools.  But  there  has  been 
enough  legislation  on  different  phases  of  the  question 
of  the  apportionment  of  the  school  money  to  deserve 
attention. 

In  Alabama,162  in  1896,  all  poll  tax  money  paid  by 
colored  persons  went  to  the  support  of  colored  schools,  and 
all  that  paid  by  white  persons,  to  the  support  of  white 
schools.  The  present  Code  apparently  does  not  require 
this  separation  of  taxes:  but  in  the  provisions  for  special 
tax  districts  163  for  school  purposes,  the  law  provides  that 
the  amount  paid  by  whites  and  blacks  shall  be  kept  sep- 
arate, presumably  meaning  that  the  funds  arising  from 
special  taxation  shall  be  apportioned  according  to  the 
amount  paid  by  each  race.  Though  Delaware  usually 
makes  an  annual  appropriation  for  colored  schools,  never- 

195 


SEPARATION  OF  RACES  IN  SCHOOLS 

theless  in  1875,164  and  again  in  1887,165  it  provided  for  a 
tax  of  thirty  cents  on  the  hundred  dollars  upon  the 
property  of  colored  persons  for  the  maintenance  of  colored 
schools. 

The  legislation  of  Kentucky  with  regard  to  the  raising 
and  apportionment  of  its  public  school  fund  has  been 
unique.  In  1866,166  all  capitation  taxes  paid  by  Negroes 
and,  in  addition,  a  tax  of  two  dollars  per  capita  upon 
Negroes  went  toward  the  support  of  their  paupers  and 
the  education  of  their  children.  In  1869,16T  a  vote  was 
taken  upon  the  propriety  of  levying  a  tax  of  fifteen 
cents  on  the  hundred  dollars  upon  the  property  of  white 
persons  for  the  support  of  white  schools  exclusively.  In 
1873,168  a  property  tax  of  twenty  cents  on  the  hundred 
dollars  and  a  poll  tax  of  one  dollar  were  levied  upon 
Negroes  of  McCracken  County  for  the  maintenance  of  their 
schools.  The  same  method  of  taxation  was  adopted  for 
Bowling  Green 169  and  Catlettsburg  17°  and  Garrard 
County.171  As  to  the  last-mentioned  place,  there  was  a 
provision  that  in  the  county  white  and  colored  school- 
houses  must  be  not  less  than  a  half  mile  apart,  and  in 
towns  not  less  than  eight  hundred  feet.  In  Bracken 
County  172  a  special  tax  of  twenty-five  cents  on  the  hun- 
dred dollars  was  levied  upon  the  property  of  whites  for 
their  schools,  not  applying  to  Negroes  at  all.  The  con- 
stitutionality 173  of  this  law  was  upheld  by  the  Supreme 
Court  of  Kentucky  on  the  ground  that  whatever  benefits 
the  Negro  is  entitled  to  under  the  school  system  he  receives 
as  a  citizen  of  Kentucky,  not  as  a  citizen  of  the  United 
States. 

In  1874,  the  same  State  17*  provided  for  a  uniform 
196 


DIVISION    OF    PUBLIC   SCHOOL    FUND 

system  of  schools  for  Negroes.  The  sources  of  the  revenue 
for  the  schools  were  (1)  a  tax  of  twenty  cents  on  the 
hundred  dollars  upon  the  property  of  Negroes,  (2)  their 
poll  taxes,  (3)  their  dog  taxes,  (4)  taxes  on  deeds,  suits 
and  licenses  collected  from  colored  persons,  (5)  fines,  pen- 
alties, and  forfeitures  collected  from  them,  (6)  sums  re- 
ceived from  Congress,  provided  the  apportionment  to  each 
colored  child  did  not  exceed  that  to  each  white  child,  and 
(7)  gifts,  donations,  and  grants.  Colored  school-houses 
must  not  be  erected  within  one  mile  of  a  white  school- 
house  in  the  country  and  six  hundred  feet  in  towns.  In 
1880,  Owensboro  175  was  authorized  to  levy  a  tax  of  thirty 
cents  on  the  hundred  dollars  and  two  dollars  on  the 
poll  upon  Negroes  for  colored  schools,  provided  the  Ne- 
groes voted  to  tax  themselves  for  this  purpose.  This  law 
was  held  176  unconstitutional  by  the  Federal  district  court 
in  1883,  the  court  saying :  "  If  taxes  can  be  distributed 
according  to  color  or  race  classification,  no  good  reason 
why  a  division  might  not  be  made  according  to  the  amount 
paid  by  each  taxpayer,  and  thus  limit  the  benefits  and  dis- 
tribute the  protection  of  the  laws  by  a  classification  based 
upon  the  wealth  of  the  taxpayer.  Such  distribution  would 
entirely  ignore  the  spirit  of  our  republican  institutions  and 
would  not  be  the  equal  protection  of  the  laws  as  under- 
stood by  the  people  of  the  State  at  the  time  of  the  adoption 
of  this  (the  Fourteenth)  amendment."  The  laws  of  Ken- 
tucky of  1874  were  held  177  unconstitutional  in  1885.  In 
1886,  Elkton  178  was  authorized  to  levy  a  tax  of  two  dol- 
lars on  the  poll  and  ninety-five  cents  on  the  hundred 
dollars  upon  Negroes  if  they  voted  thus  to  fax  themselves. 
Apparently  the  last  act  of  legislation  179  with  regard  to  the 

197 


SEPARATION  OF  RACES  IN  SCHOOLS 

school  fund  in  Kentucky  was  in  1904,  when  provision  was 
made  for  a  system  of  graded  schools  in  cities  of  the  fourth 
class,  but  the  property  or  polls  of  one  race  were  not  to  be 
taxed  for  the  support  of  the  schools  of  the  other.  A  recent 
Kentucky  case  has  held  18°  that,  after  the  regular  public 
school  fund  of  the  State  has  been  apportioned  among  the 
districts  in  proportion  to  the  number  of  children  regard- 
less of  race,  then  it  is  not  improper  for  a  district  to  supple- 
ment that  fund  by  a  tax  on  the  property  of  white  persons 
for  the  further  support  of  white  schools  and  upon  the 
property  of  Negroes  for  their  schools.  Thus,  it  appears 
that  Kentucky  is  honeycombed  with  the  special  tax  dis- 
tricts wherein  each  race  supports  its  own  schools.  Whether 
this  arrangement  is  constitutional  or  not  is  still  in  doubt, 
as  no  square  decision  on  the  point  has  yet  been  rendered 
by  the  Supreme  Court  of  the  United  States. 

For  some  years  North  Carolina  has  been  exercising  the 
principle  of  local,  special  taxation  to  supplement  the  gen- 
eral public  school  fund.  In  several  instances,  about  1886, 
the  communities  levied  the  tax  only  upon  the  whites  for 
the  benefit  of  white  schools,  but  this  was  held  181  unconsti- 
tutional by  the  State  Supreme  Court,  and  the  attempt  to 
thus  distinguish  between  the  races  does  not  appear  to  have 
been  made  since.  The  courts  of  Kentucky  and  North  Caro- 
lina are  in  conflict,  due  to  the  differences  in  the  constitu- 
tions of  those  States,  on  the  question  of  special  taxation 
by  each  race  for  its  own  schools.  The  local  tax  districts  in 
North  Carolina  have  recently  been  increasing  at  the  rate 
of  about  two  a  day,  but  the  tax  is  levied  upon  colored 
persons  as  well  as  white,  and  all  the  schools  share  the 
benefits. 

198 


NOTES 

The  Constitution  of  Texas182  of  1866  provided  that 
all  taxes  collected  from  Negroes  should  go  to  maintain 
their  public  schools,  and  that  it  should  be  the  duty  of  the 
legislature  to  encourage  schools  among  these  people.  This 
provision,  however,  does  not  appear  in  the  later  Constitu- 
tion of  Texas. 

Thus,  one  sees  that,  here  and  there,  particularly  in  Ken- 
tucky, there  are  precedents  for  a  division  of  the  school 
fund  in  proportion  to  the  taxes  paid  by  each  race,  but 
there  has  not  been  any  general  movement  in  this  direction. 
One  is  justified  in  concluding  that,  although  the  South- 
ern States  stand  steadfastly  for  race  separation  in  both 
public  and  private  schools,  they  do  not  desire  a  division  of 
the  public  school  funds  except  in  proportion  to  the  number 
of  children  of  school  age.  It  is  true  that  there  have  been 
some  local  legislative  acts  looking  in  that  direction,  and  a 
few  sporadic  political  movements  to  the  same  effect;  nev- 
ertheless, the  fact  that  the  local  legislation  has  not  become 
general  since  the  Negro  has  been  practically  eliminated 
from  politics  and  that  the  political  movements  have  met 
with  such  scanty  popular  support  show  that  the  people  are 
satisfied  with  the  present  arrangement  as  to  the  division 
of  the  school  fund. 

NOTES 

1  Laws  of  Ky.,  1904,  pp.  181-82. 

2  The  OuilooTc,  vol.  85,  pp.  921-23. 

3  The  Nation,  vol.  79,  pp.  389-90. 
4 94  S.  W.  623  (1906). 

6  Berea  College  v.  Com.  of  Ky.,  1908,  211  U.  S.  45. 
6  Pol.  Code,  1906,  sec.  1662. 
199 


SEPARATION   OF   RACES    IN    SCHOOLS 

7  Laws  of  Calif.,  1880,  p.  38;  1885,  p.  100;  1891,  p.  160; 
1893,  p.  253 ;  1903,  p.  86.    See  also  Laws  of  Calif.,  1869-70, 
p.  838;  1909,  extra  sess.,  p.  904. 

8  President  Roosevelt's  Message  to  Congress,  December 
18,  1906,  with  Secretary  Metcalf's  Report. 

9  The  Outlook,  vol.  86,  pp.  246-52. 

10  Art.  VI,  par.  2. 

11  Harper's  Weekly,  voL  51,  p.  295 ;  Current  Literature, 
vol.  42,  p.  237. 

12  Raleigh,  N.  C.,  News  and  Observer,  Feb.  13,  1909. 

13  Boston  Evening  Transcript,  Feb.  18,  1910. 

14  Ibid.,  Feb.  15, 1907,  p.  8,  col.  7. 

15  Laws  of  O.,  1828-29,  p.  73. 

"Williams    v.    Directors    of    Sch.    Dist.    No.    6,    1834, 
Wright's  Rep.  (O.)  578. 

"Laws  of  0.,  1847-48,  pp.  81-83. 

18  Ibid.,  1848-49,  pp.  17-18.     See  Curwen's  Revised  Stat., 
H,  pp.  1465-66. 

19  Stewart  v.  Southard,  1848,  17  O.  402. 

20  State  v.  City  of  Cincinnati,  1860,  19  0.  178,  at  p.  196. 

21  Laws  of  O.,  1852,  p.  441. 

22  Van  Camp  v.  Board  of  Education  of  Logan,  1859,  9  O. 
S.  406. 

23  Lane  v.  Baker,  1843,  12  0.  238. 
2*  Revised  Stat,  1843,  p.  314. 

25  Lewis  v.  Henley,  1850,  2  Ind.  332. 

26  59  Mass.  (5  Gushing)  198  (1849). 

27  Revised  Stat.,  1852,  p.  115. 

28  Art.  XIII,  sec.  1. 

29  Art.  XIV,  sec.  256. 

30  Laws  of  Ala.,  1868,  p.  148. 
81  Ibid.,  1878,  p.  136. 

32  Ibid.,  1884-85,  p.  349.    See  Code,  1907, 1,  sec.  1757. 
200 


NOTES 

33  Acts  of  Ark.,  1866-67,  p.  100. 

34  Ibid.,  1873,  p.  423.     See  Kirby's  Digest,  1904,  sees.  7536 
and  7613. 

35  Art.  XII.  sec.  12. 

36  Laws  of  Fla.,  1895,  pp.  96-97.    See  General  Stat.,  1906, 
sec.  3810. 

37  Laws  of  Ga.,  1866,  p.  59. 

38  Art.  VIII,  sec.  1. 

39  Laws  of  Ga.,  1872,  p.  69.    See  Code,  1895,  I,  sec.  1378. 

40  Laws  of  Ky.,  1869-70,  I,  p.  127. 

41  Art.  VI,  sec.  187. 

42  Laws  of  Ky.,  1904,  pp.  181-82.     See  Statutes,  1909, 
sees.  5606-10. 

43  Title  VII,  art.  135. 

44  Title  VII. 

45  Title  VHI. 

46  Laws  of  La.,  1871,  pp.  208-10. 

47  Ibid.,  1875,  pp.  50-52. 

48  Ibid.,  1880,  pp.  110-11. 

49  Art.  248. 

60  Laws  of  Md.,  1870,  pp.  555-56. 

51  Ibid.,  1872,  p.  650.     See  Laws  of  Md.,  1874,  p.  690. 

82  Pub.  Gen.  Laws,  II,  art.  77,  sees.  124-27. 

63  Laws  of  Miss.,  1878,  p.  103. 

54  Sec.  207. 

55  Code,  1906,  sec.  4562. 

56  Art.  IX,  sec.  2. 

57  Laws  of  Mo.,  1864,  p.  126. 

58  Ibid.,  1868,  p.  170. 

59  Ibid.,  1869,  p.  86. 

60  Art.  IX,  sec.  2. 

61  Laws  of  Mo.,  1889,  p.  226.     See  Statutes,  1906,  sees. 
9774-76. 

201 


SEPARATION    OF   RACES    IN    SCHOOLS 

62  Art.  IX,  sec.  2. 

63  Pub.  Laws  of  K  C.,  1901,  p.  64. 
™  Ibid.,  1903,  p.  756. 

65  Kevisal  of  1905,  II,  sec.  4086.     See  Pell's  Kevisal  of 

1908,  sec.  4086. 

66  Statutes,  1890,  sees.  6464-72. 

67  Laws  of  Okla.,  1901,  pp.  205-10. 

68  Art.  XIII,  sec.  3. 

69  Laws  of  Okla.,  1907-08,  pp.  694-95.    See  Statutes,  1908, 
sees.  6551-56. 

70  Art.  X,  sec.  10. 

71  Booker   T.    Washington,  "The  Story   of  the  Negro," 

1909,  Doubleday,  Page  &  Co.,  II,  p.  38. 

72  Art.  XI,  sec.  7.    See  Laws  of  S.  C.  1896,  p.  171,  and 
Code,  1902,  I,  sec.  1231. 

73  Laws  of  Tenn.,  1865-66,  p.  65. 

74  Art.  XI,  sec.  12. 

75  Laws  of  Tenn.,  1873,  p.  46. 

76  Ibid.,  p.  9.     See  Shannon's  Code,  1896,  sec.  1451,  and 
Supplement,  1897-1903,  p.  843. 

77  Art.  VII,  sec.  7. 

78  Laws  of  Texas,  1876,  p.  209. 

79  Ibid.,  1884,  p.  40. 

80  Ibid.,  1893,  p.  198. 

81  Ibid.,  1895,  p.  29.     See  Salyles's  Civil  Statutes,  IE,  art. 
3907,  and  Supplement,  1897-1906,  pp.  421-22. 

82  Laws  of  Va.,  1881-82,  p.  37. 

83  Ibid.,  1895-96,  p.  352. 

84  Sec.  140.    See  Pollard's  Code,  1904,  sec.  1492. 

85  Laws  of  Calif.,  1869-70,  pp.  838-39. 

86  Ward  v.  Flood,  1874,  48  Calif.,  36. 

87  Deering's  Code  and  Statutes,  I,  sees.  1669-71. 

88  Wysinger  v.  Crookshank,  1890,  23  P.  54. 

202 


NOTES 

89  Laws  of  Del,  1879-81,  p.  385. 

90  Ibid.,  1887-89,  pp.  650-51,  655,  and  658. 

91  Ibid.,  1891-93,  p.  693. 

92  Ibid.,  1898-99,   p.   193.     See   Del.    Laws   of   1852,    as 
amended  1893,  pp.  341  and  348. 

93  Statutes,  1896,  III,  p.  3730,  sec.  -292. 

94  Chase  v.  Stephenson,  1874,  71  111.  383. 

95  People  v.  Board  of  Education  of  Quincy,  1882,  101  HI. 
308. 

96  People  v.  Board  of  Education  of  Upper  Alton,  1889, 
21  N.  E.  187. 

97  People  v.   Mayor,  etc.  of  City  of  Alton,  1899,  54  N. 
E.  421. 

98  Raleigh,  N.  C.,  News  and  Observer,  Nov.  29,  1906. 
"233  111.  542  (1908). 

100  Boston  Evening  Transcript,  Nov.  28,  1908,  pt.  2,  p.  9, 
col.  5. 

101  Laws  of  Ind.,  1869,  p.  41. 

102  Cory  v.  Carter,  1874,  48  Ind.  327,  at  pp.  362-63. 

103  Laws  of  Ind.,  1877,  p.  124. 

104  State  v.  Grubbs,  1882,  85  Ind.  213. 

105  State  v.  Mitchell,  1883,  93  Ind.  303. 

106  Clark  v.  Board  of  Sch.  Dirs.,  1868,  24  la.  266. 

107  Smith  v.  Dirs.  of  the  Ind.  Sch.  of  the  Dist.  of  Keokuk, 
1875,  40  la.  518;  Dove  v.  Ind.  Sch.  Dist.  of  Keokuk,  1875,  41 
la.  689. 

108  General  Stat,  1868,  chap.  18,  art.  5,  sec.  75. 

109  Laws  of  Kan.,  1876,  p.  238. 

110  Ibid.,  1879,  p.  163. 

111  Reynolds  v.  Board  of  Education  of  Topeka,  1903,  72  P. 
274;  Williams  v.  Board  of  Education  of  Parsons,  1909,  99 
P.  216. 

112  Board  of  Education  v.  Tinnon,  1881,  26  Kan.  1 ;  Knox 

203 


SEPARATION    OF    RACES    IN    SCHOOLS 

v.  Board  of  Education  of  Independence,  1891,  25  P.  616; 
Howies  v.  Board  of  Education  of  Wichita,  1907,  91  P.  88. 

113  Letter  from  the  Superintendent  of  Schools  of  Kansas 
to  the  Superintendent  of  Schools  of  North  Carolina.     Ra- 
leigh, N.  C.,  News  and  Observer,  Aug.  24,  1906. 

114  Laws  of  Nev.,  1864-65,  p.  426. 

115  State  v.  Duffy,  1872,  7  Nev.  342. 

116  Laws  of  N.  J.,  1881,  p.  186. 

117  Pierce  v.  Union  Dist.  Sch.  Trustees,  1884,  46  N.  J.  L. 
(17  Vroom)  76. 

118  Raleigh,  N.  C.,  News  and  Observer,  Feb.  18,  1906. 

119  Dallas  v.  Fosdick,  1869,  40  How.  Prac.  (N.  Y.)  249. 

120  People  v.  Easton,  1872,  13  Abb.  Prac.  (N.  S.)  159. 

121  People  v.  Gallagher,  1883,  93  N.  Y.  438. 

122  People  v.  School  Board  of  Borough  of  Queens,  1899,  61 
N.  Y.  Sup.  330. 

123  Laws  of  N.  Y.,  1864,  p.  1281. 

124  Ibid.,  1894,  n,  p.  1288. 

125  Ibid.,  1900,  II,  p.  1173. 

126  Laws  of  0.,  1878,  p.  513. 

127  Ibid.,  1887,  p.  34. 

128  State  v.  Board  of  Education  of  Oxford,  1887,  2  O.  Cir. 
Ct.  Rep.  557. 

129  Laws  of  Pa.,  1869,  p.  160. 

130  Ibid.,  1872,  pp.  1048-49. 

131  Com.  v.  Williamson,  1873,  30  Legal  Intelligencer,  406. 

132  Laws  of  Pa.,  1881,  p.  76. 

133  Kaine  v.  Sch.  Dirs.,  1882,  101  Pa.  S.  490. 

134  Laws  of  W.  Va.,  1865,  p.  54. 

135  Ibid.,  1871,  p.  206;  1872-73,  p.  391;  1881,  pp.  176-77; 
1901,  pp.  159-60. 

138  Art.  XH,  sec.  8. 

137  Martin  v.  Board  of  Education  of  Morgan  Co.,  1896, 
204 


NOTES 

42  W.  Va.  514;  Williams  v.  Board  of  Education  of  Fairfax 
Dist;  1898,  45  W.  Va.  199. 

138  Kevised  Stat.,  1887,  sec.  3947. 

139  Kevised  Stat.,  1901,  sees.  2179  and  2231. 

140  Laws  of  Ariz.,  1909,  pp.  171-72. 

141  Art.  IX,  sec.  8. 

142  Art.  IX,  sec.  6. 

143  Acts  and  Kesolves  of  Mass.,  1854-55,  pp.  674-75. 

144  Revised  Laws,  1902,  I,  p.  478.    See  Acts  and  Resolves 
of  Mass.,  1894,  p.  609 ;  1898,  p.  453. 

145  Compiled  Laws,  1897,  II,  sec.  4683,  p.  1478. 

146  Raleigh,  N.  C.,  News  and  Observer,  Nov.  22,  1908. 

147  Booker  v.  Grand  Rapids  Medical  College,  1909,  120  N. 
W.  589. 

148  Revised  Laws,  1905,  sec.  1403. 

149  Laws  of  N.  M.,  1901,  p.  147. 

150 II.  S.  Stat.  L.,  191,  chap.  156,  sees.  16-17. 
151 26  U.  S.  Stat.  L.,  417-18,  chap.  841,  sec.  1. 

152  Laws  of  Fla.,  1895,  pp.  96-97. 

153  Laws  of  Tenn.,  1901,  p.  9. 

154  Laws  of  Okla.,  1907-08,  pp.  694-95. 

155  Lehew  v.  Brummell,  1891, 15  S.  W.  765. 

156  State  v.  Board  of  Education  of  Cincinnati,  1876,  1 
Weekly  Law.  Bui.  190. 

157  Reynolds  v.  Board  of  Education  of  Topeka,  1903,  72  P. 
274,  at  p.  280. 

158  Board  of  Education  of  Richmond  Co.  v.  Cummings, 
1898,  29  S.  E.  488. 

159 175  IT.  S.  528  (1899). 

160  Raleigh,  N.  C.,  News  and  Observer,  Sept.  25  and  Oct. 
10, 1909.  '  See  also  The  World's  Work,  July,  1909. 

161  The  International  Year-book,  1907,  p.  545. 

162  Code,  1896,  sees.  3607-08. 

205 


SEPARATION    OF    RACES    IN   SCHOOLS 

163  Code,  1907,  I,  sec.  1858. 

164  Laws  of  Del.,  1875,  pp.  82-83. 
185  Hid.,  1887-89,  pp.  147-48. 

166  Laws  of  Ky.,  1867,  pp.  94-95. 

167  Ibid.,  1869,  p.  7. 
168 /fcid,  1873,  p.  509. 
™lUd.,  p.  238. 

170  Ibid.,  pp.  193-94. 

171  Ibid.,  pp.  554-55. 

172  Ibid.,  adj.  sess.,  pp.  471-72. 

173  Marshall  v.  Donovan,  1874,  10  Bush  (Ky.)  681. 

174  Laws  of  Ky.,  1873-74,  pp.  63-66. 

175  Hid.,  local,  1879-80,  I,  pp.  257-59. 

176  Claybrook  v.  Owensboro,  1883,  16  Fed.  297,  at  p.  302. 

177  Dawson  v.  Lee,  1885,  83  Ky.  49. 

178  Laws  of  Ky.,  1885-86, 1,  pp.  877-91. 
™Ibid.,  1904,  pp.  129-31. 

180  Crosby  v.  City  of  Mayfield,  1909,  117  S.  W.  316. 
181Pruitt  v.  Gaston  Co.  Commissioners,  1886,  94  N.  C. 
709 ;  Higgles  v.  City  of  Durham,  1886,  94  N.  C.  800. 
182  Art.  X,  sec.  7. 


CHAPTEE   IX 

SEPARATION    OF    RACES    IN    PUBLIC    CONVEYANCES 

THERE  is  perhaps  no  phase  of  the  American  race  prob- 
lem which  has  been  discussed  so  much  within  the  last  dec- 
ade as  the  so-called  "Jim  Crow"  laws,  the  statutes  re- 
quiring separate  accommodations  for  white  and  colored 
passengers  in  public  conveyances.  This  arises  largely  from 
the  fact  that  these  legislative  enactments  are  of  general 
concern,  while  the  other  legal  distinctions  have  directly 
affected  only  certain  classes  of  each  race.  Laws  prohibiting 
intermarriage,  for  instance,  concern  only  those  of  mar- 
riageable age;  suffrage  restrictions  apply  only  to  males  of 
voting  age;  and  statutes  requiring  separate  schools  affect 
immediately  only  children  and  youths ;  but  the  laws  requir- 
ing white  and  colored  passengers  to  occupy  separate  seats, 
compartments,  or  coaches  concern  every  man,  woman,  and 
child,  who  travels,  the  country  over.  They  affect  not  only 
those  living  in  the  States  where  the  laws  are  in  force,  but 
the  entire  traveling  public.  The  white  man  or  the  Negro 
in  Massachusetts  may  not  care  anything  about  the  suffrage 
restrictions  of  South  Carolina,  but,  if  he  travels  through 
the  South,  he  must  experience  the  requirements  of  the 
"  Jim  Crow  "  laws. 


207 


SEPARATION  OF  RACES  IN  PUBLIC  CONVEYANCES 


ORIGIN   OF   "JIM   CROW" 

The  phrase  "Jim  Crow"  has  become  so  inseparably 
affixed  to  the  laws  separating  the  races  in  public  con- 
veyances that  two  States,  North  Carolina  and  Mary- 
land, have  indexed  the  laws  on  that  subject  under 
"  J "  in  some  of  their  annual  statutes.  The  earliest 
public  use  of  the  phrase  appears  to  have  been  in 
1835,  when  Thomas  D.  Rice,  the  first  Negro  minstrel, 
brought  out  in  Washington  a  dramatic  song  and  Negro 
dance  called  "Jim  Crow."  The  late  actor,  Joseph 
Jefferson,  when  only  four  years  old,  appeared  in  this 
dance.1  In  1841  "Jim  Crow"  was  first  used  in  Massa- 
chusetts to  apply  to  a  railroad  car  set  apart  for  the  use  of 
Negroes.2  The  phrase,  then,  has  a  somewhat  more  dig- 
nified origin  than  is  ordinarily  attributed  to  it  by  those 
who  have  considered  it  as  only  an  opprobrious  compar- 
ison of  the  color  of  the  Negro  with  that  of  the  crow. 


DEVELOPMENT   OF    LEGISLATION    PRIOR   TO   1875 

The  first  "  Jim  Crow  "  laws  are  those  of  Florida  and 
Mississippi  in  1865,  and  Texas  in  1866.  The  laws 3  of 
Florida  provided :  "  That  if  any  Negro,  mulatto,  or  other 
person  of  color  shall  intrude  himself  into  .  .  .  any  rail- 
road car  or  other  public  vehicle  set  apart  for  the  exclusive 
accommodation  of  white  people,  he  shall  be  deemed  guilty 
of  a  misdemeanor  and,  upon  conviction,  shall  be  sentenced 
to  stand  in  pillory  for  one  hour,  or  be  whipped,  not  ex- 
ceeding thirty-nine  stripes,  or  both,  at  the  discretion  of  the 
jury,  nor  shall  it  be  lawful  for  any  white  person  to  intrude 

208 


DEVELOPMENT   OF   LEGISLATION   PRIOR  TO   1875 

himself  into  any  railroad  car  or  other  public  vehicle  set 
apart  for  the  exclusive  accommodation  of  persons  of  color, 
under  the  same  penalties."  The  law  4  of  Mississippi  was 
as  follows:  "That  it  shall  be  unlawful  for  any  officer, 
station  agent,  conductor,  or  employee  on  any  railroad  in 
this  State,  to  allow  any  freedman,  Negro,  or  mulatto,  to 
ride  in  any  first-class  passenger  cars,  set  apart,  or  used 
by,  and  for  white  persons;  and  any  person  offending 
against  the  provisions  of  this  section  shall  be  deemed 
guilty  of  a  misdemeanor,  and  on  conviction  thereof,  be- 
fore the  circuit  court  of  the  county  in  which  said  offence 
was  committed,  shall  be  fined  not  less  than  fifty  dollars, 
nor  more  than  five  hundred  dollars;  and  shall  be  impris- 
oned in  the  county  jail  until  such  fine  and  costs  of  prose- 
cution are  paid:  Provided,  that  this  section  of  this  act 
shall  not  apply  in  the  case  of  Negroes  or  mulattoes,  travel- 
ing with  their  mistresses,  in  the  capacity  of  nurses." 
Texas 5  simply  provided  that  every  railroad  company 
should  be  required  to  attach  to  each  passenger  train 
run  by  it  one  car  for  the  special  accommodation  of 
freedmen. 

Other  Southern  States,  perhaps,  would  have  under- 
taken similar  legislation,  had  the  legislatures  been  left 
unfettered;  but  under  the  "Reconstruction  regime,  a  num- 
ber of  the  States  even  passed  laws  prohibiting  discrimina- 
tio  against  Negroes  in  public  conveyances.  In  1870,  the 
Georgia  legislature  6  enacted  a  statute  requiring  the  rail- 
roads in  the  State  to  furnish  equal  accommodations  to 
all,  without  regard  to  race,  color,  or  previous  condition, 
when  a  greater  amount  of  fare  was  exacted  than  had  been 
exacted  before  January  1,  1861,  which  had  been  at  that 
15  809 


SEPARATION  OF  RACES  IN  PUBLIC  CONVEYANCES 

time  half -fare  for  persons  of  color.  Texas,7  in  1871,  re- 
pealed the  law  of  1866  and  prohibited  public  carriers 
"  from  making  any  distinctions  in  the  carrying  of  pas- 
sengers "  on  account  of  race,  color,  or  previous  condition, 
making  the  violation  of  the  law  a  misdemeanor  punishable 
by  a  fine  of  not  less  than  one  hundred  nor  more  than  five 
hundred  dollars,  or  imprisonment  for  not  less  than  thirty 
or  more  than  ninety  days,  or  both.  In  1873,  Louisiana  8 
prohibited  common  carriers  from  making  any  discrim- 
ination against  any  citizen  of  the  State  or  of  the  United 
States  on  account  of  race  or  color,  and  went  further  still 
by  prohibiting  common  carriers  from  other  States  from 
making  such  discriminations  while  in  the  State.  Out  of 
this  latter  provision  arose  the  great  case  of  Hall  v.  De- 
Cuir,  which  will  be  discussed  later.  In  1874,  Arkansas  9 
prohibited  any  public  carrier  from  making  any  rules  for 
the  government  or  control  of  his  business  which  should 
not  affect  all  persons  alike,  without  regard  to  race  or 
color. 

In  the  meantime,  some  of  the  States  outside  the  South 
were  taking  steps  to  adjust  the  privileges  of  persons  of 
color.  In  1866,  Massachusetts 10  made  it  unlawful  '  to 
exclude  persons  from  or  restrict  them  in  ...  any  public 
conveyance  .  .  .  except  for  good  cause."  The  following 
year,  Pennsylvania "  enacted  a  statute  prohibiting  rail- 
roads from  excluding  persons  from  their  cars  or  requiring 
them  to  ride  in  different  parts  of  the  cars  on  account  of 
color  or  race,  also  prohibiting  the  conductor  or  other  agent 
of  the  railroad  from  throwing  the  car  off  the  track  to 
prevent  such  persons  from  riding.  This  law  was  passed 
just  a  few  days  before  the  famous  case  of  West  Chester 

210 


LEGISLATION    BETWEEN    1865    ANP    1881 

and  Philadelphia  Eailway  Company  v.  Mills  was  decided, 
which  case  will  also  be  discussed  later. 

A  statute  of  Delaware  12  of  1875,  as  has  been  seen,  de- 
clared that  the  carriers  of  passengers  might  make  such 
arrangements  in  their  business  as  would,  if  necessary,  as- 
sign a  particular  place  in  their  cars,  carriages,  or  boats  to 
such  of  their  customers  as  they  might  choose  to  place  there, 
and  whose  presence  elsewhere  would  be  offensive  to  the 
major  jart  of  the  traveling  public,  where  their  business 
was  conducted;  but  the  accommodations  must  be  equal 
for  all  if  the  same  price  for  carriage  was  required  from  all. 


LEGISLATION  BETWEEN   1865  AND  1881 

Before  considering  the  "  Jim  Crow "  laws  of  the 
Southern  States,  it  will  be  instructive  to  look  into  some 
of  the  court  decisions  between  1865  and  1881,  the  latter 
being  the  date  of  adoption  of  the  first  "  Jim  Crow  "  law 
of  the  second  period,  to  see  what  steps  the  railroad,  street 
car,  and  steamboat  companies  had  taken  to  separate  the 
races,  in  the  absence  of  State  legislation  upon  the  sub- 
ject. 

In  1865,  a  colored  woman  ejected  from  a  street  car  in 
Philadelphia 13  brought  action  against  the  conductor,  who 
pleaded  that  there  was  a  rule  established  by  the  road  su- 
perintendent that  Negroes  should  be  excluded  from  the 
cars.  The  court  held  that  the  conductor  had  no  right  to 
eject  a  passenger  on  account  of  race  or  color,  and  that  a 
regulation  of  the  company  would  not  be  a  defence  to  the 
action. 

Just  a  few  days  after  the  Pennsylvania  legislature 
211 


SEPARATION  OF  RACES  IN  PUBLIC  CONVEYANCES 

passed  the  act  prohibiting  discriminations  against  persons 
of  color  in  public  conveyances,  to  which  reference  has  been 
made,  the  Supreme  Court  of  the  State  ruled  14  that  it  was 
not  an  unreasonable  regulation  of  the  railroad  company  to 
separate  the  passengers  so  as  to  promote  personal  comfort 
and  convenience.  This  is  interesting  because  it  is  the 
earliest  case  found  supporting  the  legality  of  the  separa- 
tion of  races  in  public  conveyances.  Since  the  case  arose 
before  the  Civil  Rights  Bill  of  the  Commonwealth  was 
adopted,  it  does  not  purport  to  rule  upon  the  constitution- 
ality of  that  act. 

In  San  Francisco,15  in  1868,  a  street  car  conductor  re- 
fused to  stop  for  a  colored  woman,  saying,  "  We  don't  take 
colored  people  in  the  cars,"  whereupon  she  brought  an 
action  against  the  company  and  was  awarded  damages  by 
the  lower  court.  Here  there  is  an  implication  that  the 
railroad  company  had  a  regulation  excluding  persons  of 
color  from  street  cars. 

In  1870,  the  Chicago  and  Northwestern  Eailway  Com- 
pany 18  refused  to  admit  a  colored  woman  to  the  car  set 
apart  for  ladies  and  gentlemen  accompanying  them. 
Whereupon  she  brought  an  action  and  recovered  two  hun- 
dred dollars  damages.  It  does  not  appear  from  the  case 
that  the  railroad  had  set  apart  any  car  or  part  of  a  car 
for  the  exclusive  accommodation  of  colored  persons.- 

A  steamboat  company  in  Iowa,  in  1873,  had  a  regula- 
tion that  colored  passengers  should  not  eat  at  the  regu- 
lar tables,  but  at  a  table  on  the  "  guards  "  of  the  boat-. 
The  Supreme  Court  of  that  State  held  17  that  this  rule 
was  unreasonable  and,  therefore,  illegal. 

The  first  case  to  reach  the  Supreme  Court  of  the 
212 


LEGISLATION    BETWEEN    1865   AND    1881 

United  States  involving  the  separation  of  white  and  col- 
ored passengers  on  cars  was  one  brought  against  the  Wash- 
ington, Alexandria,  and  Georgetown  Eailroad  Company,  in 
1873.  This  road  was  chartered  by  Congress  in  1863  with 
the  provision  that  no  person  should  be  excluded  from  the 
cars  on  account  of  color.  A  Negro  woman,  with  an  ordi- 
nary first-class  ticket,  was  made  to  ride  in  a  separate  coach 
precisely  like  that  used  by  the  white  passengers.  The 
court  ruled  18  that  the  Act  of  1863  meant  that  persons  of 
color  should  travel  in  the  same  cars  as  white  persons  with- 
out any  distinction  being  made;  that,  therefore,  the  law 
was  not  satisfied  by  the  company's  providing  cars  assigned 
exclusively  to  persons  of  color,  though  they  were  as  good 
as  those  assigned  to  white  passengers. 

In  1869,  the  Louisiana  19  legislature  passed  a  law  pro- 
hibiting railroad,  street  car,  and  steamboat  companies 
from  making  any  discrimination  on  account  of  race  or 
color.  In  the  often-cited  case  of  Hall  v.  DeCuir,20  a  test 
case  arising  under  this  act  in  1875,  the  Supreme  Court 
ruled  that  the  Louisiana  act  was  unconstitutional  because 
it  was  an  interference  with  interstate  commerce.  Chief 
Justice  Waite,  in  delivering  the  opinion  of  the  court,  said: 
"  If  each  State  was  at  liberty  to  regulate  the  conduct  of 
carriers  while  within  its  jurisdiction,  the  confusion  likely 
to  follow  could  not  but  be  productive  of  great  inconven- 
ience and  unnecessary  hardship."  This  case  has  stood  as  a 
warning  to  the  Southern  States  that  they  must  be  careful 
to  mention  in  their  "  Jim  Crow "  laws  that  they  apply 
only  to  intrastate  passengers.  But,  as  will  be  seen  later, 
though  this  case  has  not  been  overruled,  it  has  been  re- 
fined upon. 

213 


SEPARATION  OF  RACES  IN  PUBLIC  CONVEYANCES 

In  a  case 21  arising  in  the  Federal  District  Court  of 
Texas  in  1877,  it  was  held  that  for  a  railroad  employee  to 
deny  to  a  passenger  the  right  to  ride  in  the  only  car  appro- 
priated for  the  use  of  ladies,  because  she  was  a  colored 
woman,  was  a  violation  of  the  Civil  Eights  Bill.  But  the 
judge,  in  charging  the  jury  at  the  trial,  said  that,  if  there 
were  two  cars  equally  fit  and  appropriate,  then  the  white 
and  colored  passengers  might  be  separated. 

The  above  are  only  a  few  of  the  many  cases  which 
arose  between  1865  and  1881,  involving  the  separation  of 
white  and  colored  passengers;  they  are  cited  to  show  that, 
in  the  absence  of  legislative  authority,  many  of  the  public 
conveyance  companies  had  regulations  of  their  own  sepa- 
rating the  races.  The  "  Jim  Crow  "  laws,  in  other  words, 
coming  later,  did  scarcely  more  than  to  legalize  an  exist- 
ing and  widespread  custom. 


SEPARATION   OF    PASSENGERS    ON    STEAMBOATS 

As  already  suggested,  the  "  Jim  Crow  "  laws  apply  to 
three  classes  of  vehicles,  namely :  steamboats,  railroad  cars, 
and  street  cars.  There  is  comparatively  little  legislation 
about  white  and  colored  passengers  on  steamboats.  Xorth 
Carolina  22  is  the  only  State  to  include  steamboats  in  the 
regular  "  Jim  Crow  "  law.  It  requires  all  steamboat  com- 
panies engaged  as  common  carriers  in  the  transportation 
of  passengers  for  hire  to  provide  separate  but  equal  accom- 
modations for  the  white  and  colored  races  of  all  steamboats 
carrying  passengers.  The  violation  of  this  law  is  punish- 
able by  a  fine  of  one  hundred  dollars;  each  day  is  con- 
sidered a  separate  offence. 

214 


SEPARATION    OF   PASSENGERS    ON   STEAMBOATS 

On  February  9,  1900,  the  Virginia23  legislature  en- 
acted a  statute  requiring  the  separation  of  white  and  col- 
ored passengers  on  all  steamboats  carrying  passengers  and 
plying  in  the  waters  within  the  jurisdiction  of  the  State  in 
the  sitting,  sleeping,  and  eating  apartments,  so  far  as  the 
"  construction  of  the  boat  and  due  consideration  for  com- 
fort of  passengers  "  would  permit.  There  must  be  no  dif- 
ference in  the  quality  of  accommodations.  The  law  makes 
an  exception  of  nurses  and  other  attendants  traveling  with 
their  employers,  and  officers  in  charge  of  prisoners.  For 
disobeying  the  law,  the  boat  officer  is  guilty  of  a  misde- 
meanor punishable  by  a  fine  of  not  less  than  twenty-five 
dollars  nor  more  than  one  hundred  dollars.  Any  passenger 
wilfully  disobeying  the  law  is  guilty  of  a  misdemeanor 
punishable  by  a  fine  of  not  less  than  five  dollars  nor  more 
than  fifty  dollars  or  by  imprisonment  for  not  less  than 
thirty  days,  or  both.  The  boat  officer  may  eject  an  offend- 
ing passenger  at  any  landing  place,  and  neither  he  nor 
the  steamboat  company  will  be  liable.  In  1901,  the  above 
law 24  was  made  more  stringent  by  omitting  the  provision 
about  the  construction  of  the  boat  and  consideration  for 
the  comfort  of  the  passengers,  quoted  above.  In  190-4, 
South  Carolina 25  required  all  ferries  to  have  separate 
cabins  for  white  and  colored  passengers. 

The  above  legislation  seems  to  be  the  only  legislation 
as  to  steamboats  up  to  the  present;  but  it  does  not  meas- 
ure the  separation  of  the  races  on  steamboats,  inasmuch 
as  the  companies  in  the  various  States  have  adopted  regu- 
lations requiring  separate  accommodations  for  the  races. 
This  custom  applies  to  interstate  as  well  as  to  intrastate 
travel.  The  steamers  plying  between  Boston  and  the  ports 

215 


SEPARATION  OF  RACES  IN  PUBLIC  CONVEYANCES 

of  the  South,  for  instance,  provide  separate  dining  tables, 
separate  toilet  rooms,  and  separate  smoking  rooms  for  the 
white  and  colored  passengers.  This  regulation  of  inter- 
state travel  is  upheld  by  two  Federal  cases,  one  in  Geor- 
gia 26  in  1879  and  the  other  in  Maryland  27  in  1885,  which 
held  in  substance,  that,  inasmuch  as  Congress  has  enacted 
no  law  which  forbids  interstate  common  carriers  from 
separating  white  and  colored  passengers  so  long  as  the 
accommodations  are  equal,  during  congressional  inaction, 
the  companies  may  make  their  own  regulations. 

SEPARATION   OF   PASSENGERS    IN   RAILROAD   CARS 

With  the  exception  of  the  transient  "  Jim  Crow  "  laws 
of  Mississippi,  Florida,  and  Texas  of  1865-67,  the  first 
State  to  adopt  a  comprehensive  law  separating  the  white 
and  colored  passengers  on  railroad  cars  was  Tennessee  28 
which  did  so  in  1881.  The  statute  of  that  State  stood  alone 
until  1887,  when  a  series  of  "  Jim  Crow  "  laws  were  en- 
acted by  the  States  in  the  following  order :  Florida,29  1887 ; 
Mississippi,30  1888;  Texas,31  1889;  Louisiana,32  1890; 
Alabama,33  Kentucky,34  Arkansas,35  and  Georgia,36  1891. 
For  some  years  thereafter  the  subject  remained  untouched 
by  the  legislatures,  save  an  amending  statute  now  and 
then;  but  in  1898-99,  the  other  Southern  States  began 
to  fall  into  line:  South  Carolina,37  1898;  North  Caro- 
lina,38 1899;  Virginia,39  1900;  Maryland,40  1904;  Okla- 
homa,41 1907.  It  appears  that  Missouri  is  the  only  South- 
ern State  which  has  not  separated  the  races  in  railroad 
cars. 

The  details  of  the  "  Jim  Crow  "  laws  as  to  railroads 
216 


SEPARATION    OF   PASSENGERS    IN    RAILROAD    CARS 

are  very  nearly  the  same  in  all  the  Southern  States.  They 
require  white  persons,  on  the  one  hand,  and  "  Negroes," 
"  persons  of  color,"  "  persons  of  African  descent,"  etc.,  on 
the  other,  to  occupy  separate  seats,  compartments,  or 
coaches.  The  legal  meaning  of  the  above-mentioned 
phrases  has  already  been  considered.  It  is  safe  to  say,  as 
the  Arkansas  statute  does  declare,  that,  if  one  has  a  visible 
and  distinct  admixture  of  African  blood,  he  must  accept 
the  accommodations  furnished  colored  passengers. 

Interstate  and  Intrastate  Travel 

The  first  great  question  that  arises  is  the  extent  of 
application  of  the  laws.  The  statutes  declare  that  they 
apply  to  all  railroads  doing  business  in  the  State.  But 
just  what  does  this  mean?  It  has  been  generally  under- 
stood and  the  principle  has  been  confirmed  by  judicial  de- 
cisions42 that  States  may  pass  laws  separating  passengers 
going  one  from  one  point  to  another  in  the  same  State. 
But  how  about  passengers  coming  from  or  going  to  points 
outside  the  State?  Suppose,  for  instance,  a  colored  pas- 
senger were  to  board  a  train  at  Philadelphia  for  Evans- 
ville,  Indiana,  and  go  through  Maryland,  West  Virginia, 
and  Kentucky.  Pennsylvania  and  West  Virginia  have  no 
"  Jim  Crow  "  laws ;  Maryland  and  Kentucky  have.  When 
the  colored  passenger  reaches  the  Maryland  line,  must  he 
enter  a  car  set  apart  for  colored  people  ?  When  he  reaches 
the  West  Virginia  line,  may  he  go  back  into  the  coach 
with  white  passengers  ?  When,  again,  he  reaches  the  Ken- 
tucky line,  will  he  be  forced  to  return  to  the  car  set  apart 
for  his  race  ?  And,  finally,  when  he  comes  to  Indiana,  may 
he  once  more  return  to  the  car  for  white  passengers  ?  Or, 

217 


SEPARATION  OF  RACES  IN  PUBLIC  CONVEYANCES 

suppose  a  railroad  from  Ohio  to  Indiana  has  only  a  few 
miles  of  its  track  in  Kentucky  and  only  two  depots  in  that 
State.  Must  the  railroad  furnish  separate  accommoda- 
tions for  the  white  and  colored  passengers  going  between 
those  two  points  in  Kentucky  ?  If  these  questions  had  been 
asked  thirty  years  ago  or  at  the  time  of  the  Hall  v.  DeCuir 
case,  there  is  no  doubt  that  the  Federal  courts  would  have 
held  that  it  was  an  unwarranted  interference  with  inter- 
state commerce  or  would  lead  to  too  much  confusion. 

The  law  of  Alabama  of  1891  contained  the  provision 
that  "  this  act  shall  not  apply  to  cases  where  white  or  col- 
ored passengers  enter  this  State  upon  such  railroads  under 
contract  for  their  transportation  made  in  other  States 
where  like  laws  to  this  do  not  prevail."  Since  these  laws, 
however,  have  become  so  prevalent  throughout  the  South, 
the  courts  seem  to  have  swung  over  to  the  side  of  public 
opinion.  In  1889,  the  Supreme  Court  of  Mississippi 
held43  that  though  the  "Jim  Crow"  law  of  that  State 
applied  only  to  intrastate  travel,  it  was  not  an  unwar- 
ranted burden  upon  interstate  railroads  to  require  them 
to  furnish  separate  accommodations  for  the  races  as  soon 
as  they  came  across  the  State  line. 

In  1894,  the  "  Jim  Crow "  law  of  Kentucky  was  de- 
clared unconstitutional  by  the  Federal  Circuit  Court  **  be- 
cause the  language  of  the  acts  was  so  comprehensive  as  to 
embrace  all  passengers,  whether  their  passage  commenced 
or  ended  within  the  State  or  otherwise  and  thus  interfered 
with  interstate  commerce.  Four  years  later,  however,  the 
Court  of  Appeals 45  of  Kentucky,  considering  the  same 
statute,  ruled  that  the  law  of  that  State  was  not  in  viola- 
tion of  the  Fourteenth  Amendment  or  the  "  interstate 

218 


commerce  clause "  of  the  Federal  Constitution,  arguing 
that,  if  it  did  apply  to  interstate  passengers,  which  was 
not  conceded,  it  would  be  construed  to  apply  only  to  trans- 
portation within  the  State.  Under  this  latter  ruling  ap- 
parently the  colored  passenger  going  from  West  Virginia 
to  Indiana  through  Kentucky  would  have  to  ride  in  the 
car  provided  for  his  race  in  that  State. 

The  same  year,  1898,  the  Supreme  Court 48  of  Tennes- 
see held  that  it  was  a  proper  exercise  of  the  police  power 
to  require  even  interstate  passengers  to  occupy  separate 
accommodations  while  in  that  State.  The  last  case 47 
upon  this  point,  decided  April  16,  1907,  held  that  a  rail- 
road company  may,  independently  of  statute,  adopt  and 
enforce  rules  requiring  colored  passengers,  although  they 
are  interstate  passengers,  to  occupy  separate  coaches  or 
compartments. 

Thus  the  matter  stands.  In  the  absence  of  a  recent 
United  States  Supreme  Court  decision  upon  the  point,  it 
would  be  unsafe  to  make  a  generalization.  But  it  is  clear 
that  there  has  been,  in  the  point  of  view  of  the  Federal 
judiciary,  a  reaction  from  the  extreme  doctrine  of  Hall  v. 
DeCuir.  All  the  lower  courts,  both  State  and  Federal,  are 
inclined  to  make  the  laws  apply  to  all  passengers,  both 
intrastate  and  interstate,  so  long  as  they  are  within  the 
borders  of  the  particular  State. 

Sleeping  Cars 

In  a  number  of  the  "  Jim  Crow  "  laws  there  are  special 
provisions  about  Pullman  cars.  Oklahoma  and  Texas  pro- 
vides that  carriers  may  haul  sleeping  or  chair  cars  for 
the  exclusive  use  of  either  race  separately,  but  not  jointly. 

219 


SEPARATION  OF  RACES  IN  PUBLIC  CONVEYANCES 

Georgia  goes  farthest  in  legislation  on  this  point.  In  1899, 
the  legislature  provided  that,  in  assigning  seats  and  berths 
on  sleeping  cars,  white  and  colored  passengers  must  be 
separated;  but  declared  that  nothing  in  the  act  should  be 
construed  to  compel  sleeping-car  companies  to  carry  per- 
sons of  color  in  sleeping  or  parlor  cars.  The  act  does  not 
apply  to  nurses  and  servants  with  their  employers,  who 
may  enter  and  ride  in  the  car  with  their  employers.  The 
conductors  are  made  special  policemen  to  enforce  the  law, 
and  the  failure  or  refusal  to  do  so  is  punishable  as  a  mis- 
demeanor. The  "  Jim  Crow "  laws  in  Maryland,  North 
Carolina,  and  Virginia  do  not  apply  to  Pullman  cars  or 
to  through  express  trains;  nor,  in  South  Carolina,  to 
through  vestibule  trains. 

The  Court  of  Appeals  of  Texas,48  in  1897,  held  that 
a  colored  passenger  in  a  Pullman  car,  going  from  a  point 
outside  of  Texas  into  that  State,  might  be  compelled, 
upon  reaching  the  Texas  line,  to  enter  a  Pullman  car  set 
apart  for  passengers  of  his  own  race,  provided  the  accom- 
modations were  equal.  This  decision  is  in  harmony  with 
those  already  considered  with  reference  to  day  coaches. 

Waiting-Rooms 

Three  States,  Arkansas,  Louisiana,  and  Oklahoma,  re- 
quire separate  waiting-rooms  at  railroad  depots.  In  Mis- 
sissippi, the  railroad  commission  was  given  power  in 
1888  to  designate  separate  waiting-rooms,  if  it  deemed 
such  proper.  In  most,  if  not  all,  of  the  other  Southern 
States,  separate  waiting-rooms  are  provided  by  the  railroad 
companies  on  their  own  initiative,  and  this  action  on  their 
part  was  held  constitutional 49  in  South  Carolina  in  1893. 

220 


SEPARATION    OF   PASSENGERS   IN    RAILROAD    CARS 

The  most  recent  legislation  along  this  line  was  an  act 
of  South  Carolina  of  February  23,  1906,  requiring  a  sepa- 
ration of  the  races  in  all  station  restaurants  and  eating- 
houses,  imposing  a  heavy  fine  for  its  violation.  It  is  prob- 
able that  the  necessity  or  propriety  of  this  law  was  sug- 
gested by  the  disturbance  which  arose  at  Hamlet,  North 
Carolina,  near  the  South  Carolina  line,  when  the  propri- 
etor of  the  Seaboard  Air  Line  Railway  eating-house  at 
that  place  allowed  a  party  of  Negroes,  one  of  whom  was 
Dr.  Booker  T.  Washington,  to  eat  in  the  main  dining 
room,  while  the  white  guests  were  fed  in  a  side  room. 

Trains  to  which  Laws  do  not  Apply 
There  are  certain  classes  of  trains  to  which  the  "  Jim 
Crow  "  laws  do  not  apply.  In  Maryland,  Oklahoma,  Tex- 
as, and  Virginia,  they  do  not  apply  to  freight  trains  car- 
rying passengers  in  the  caboose  cars.  South  Carolina  ex- 
empts narrow-gauged  roads  from  the  requirements  of  the 
law.  North  Carolina  gives  its  railroad  commissioners 
power  to  exempt  branch  lines  and  narrow-gauged  roads 
if,  in  their  judgment,  separation  is  unnecessary  to  secure 
the  comfort  of  passengers.  South  Carolina  provides  that, 
where  a  railroad  is  under  forty  miles  in  length  and  oper- 
ates both  a  freight  and  a  passenger  train  daily,  the  law 
applies  only  to  the  passenger  train.  These  two  States  also 
except  relief  trains  in  case  of  accident.  Whether  there 
is  statutory  exemption  or  not,  the  railway  company  can- 
not be  held  responsible  for  not  separating  the  passengers 
in  case  of  an  accident.50  Oklahoma  allows  the  running  of 
extra  or  special  trains  or  cars  for  the  exclusive  accommo- 
dation of  either  race,  if  the  regular  trains  or  cars  are  oper- 

221 


SEPARATION    OF    RACES    IN    PUBLIC    CONVEYANCES 

ated  upon  regular  schedule.  Texas  provides  that  the  pro- 
visions of  its  act  shall  not  apply  to  any  excursion  train  run 
strictly  as  such  for  the  benefit  of  either  race. 

Passengers  to  whom  Law  does  not  Apply 
Certain  classes  of  passengers  are  exempt  from  the  laws. 
There  is,  for  instance,  an  exemption  in  favor  of  nurses 
attending  the  children  or  sick  of  the  other  race  in  Florida, 
Georgia,  Kentucky,  Louisiana,  Maryland,  North  Carolina, 
South  Carolina,  Texas,  and  Virginia.  The  Florida  pro- 
vision is  that  nothing  in  the  act  shall  be  construed  to  pre- 
vent female  colored  nurses  having  the  care  of  children  or 
sick  persons  from  riding  in  cars  for  white  passengers. 
North  Carolina  excepts  "  Negro  servants  in  attendance 
on  their  employers."  These  two  qualifications  sound  in- 
nocent enough,  but  probably  upon  a  test  they  would  be 
declared  unconstitutional.  It  would  be  considered  class 
legislation  in  that  colored  nurses  and  Negro  servants  are 
specifically  mentioned  instead  of  exempting  nurses  and 
servants  in  general.  In  fact,  the  point  has  been  decided 
in  the  case  of  street-car  provisions  with  similar  wording. 

Arkansas,  Kentucky,  Maryland,  Oklahoma,  Texas, 
and  Virginia  expressly  exempt  the  employees  of  a  rail- 
road in  the  discharge  of  their  duty  from  the  requirements 
of  the  "  Jim  Crow  "  laws.  Where  such  exemption  is  not 
so  made  in  the  statute,  it  must  be  taken  for  granted,  for 
it  would  be  manifestly  unreasonable  to  prohibit  a  white 
conductor  from  going  into  the  colored  coach  to  collect 
tickets,  or  a  colored  porter  from  going  into  the  coach  for 
white  passengers  to  regulate  the  ventilation  or  for  any 
other  purpose  of  his  employment.  It  may  be  noted,  how- 

222 


SEPARATION    OF   PASSENGERS    IN   RAILROAD    CARS 

ever,  that  in  States  where  these  laws  apply,  the  white  con- 
ductor usually  assists  the  white  passengers  in  entering 
and  leaving  the  cars,  while  colored  porters  attend  to  the 
colored  passengers. 

Most  of  the  States  provide  that  the  laws  do  not  apply 
to  officers  in  charge  of  prisoners.  Arkansas  declares  that 
"  officers  accompanying  prisoners  may  be  assigned  to  the 
coach  or  room  to  which  said  prisoners  belong  by  reason 
of  race."  Louisiana,  on  the  contrary,  exempts  prisoners  in 
the  charge  of  officers  from  the  "  Jim  Crow  "  laws.  The 
South  Carolina  law  exempts  lunatics  as  well.  The  law  of 
Kentucky  exempts  "officers  in  charge  of  prisoners."  When, 
in  a  case  which  arose  in  Kentucky,  a  sheriff  went  to  take  a 
Negro  lunatic  over  the  road,  the  conductor  required  the 
lunatic  to  stay  in  the  colored  coach,  and  gave  the  sheriff  the 
choice  of  staying  with  the  lunatic  or  leaving  him  and  riding 
in  the  car  for  white  passengers.  The  court 51  upheld  the 
action  of  the  conductor,  ruling  that  the  exemption  applied 
only  to  the  officers,  not  to  the  prisoners.  The  law  has  the 
same  effect  as  if  it  said  that  the  officer  should  ride  in  the 
car  set  apart  for  the  race  of  the  prisoner  or  lunatic,  be- 
cause it  is  his  duty  to  guard  his  charge,  and,  if  the  pris- 
oner or  lunatic  must  stay  in  the  car  for  his  race,  the  officer 
must  stay  there  with  him.  North  Carolina,  South  Caro- 
lina, and  Maryland  exempt  prisoners  from  the  require- 
ments of  the  "  Jim  Crow  "  laws. 

Nature  of  Accommodations 

As  to  the  nature  of  railroad  accommodations,  all  "  Jim 
Crow "  laws  provide,  in  substance,  that  the  accommoda- 
tions for  white  and  colored  passengers  must  be  equal  for 

223 


SEPARATION  OF  RACES  IN  PUBLIC  CONVEYANCES 

both  races.  Florida  provides  that  the  coaches  for  colored 
passengers  (with  first-class  tickets)  must  be  equally  good 
and  provided  with  the  same  facilities  for  comfort  as  those 
for  white  passengers  with  first-class  tickets.  Kentucky, 
Maryland,  and  Virginia  prohibit  any  difference  in  qual- 
ity, convenience,  or  accommodation.  Tennessee  provides 
that  the  first-class  coaches  for  colored  passengers  must  "  be 
kept  in  good  repair,  and  with  the  same  convenience  and 
subject  to  the  same  rules  governing  other  first-class  cars, 
preventing  smoking  and  obscene  language." 

There  is  no  one  point  upon  which  the  courts  are  more 
in  accord  than  that  there  is  no  ground  of  action  so  long 
as  the  accommodations  are  substantially  equal.52  The 
great  working  principle  was  enunciated  in  1885  in  the  Cir- 
cuit Court 53  of  Tennessee  in  the  doctrine  that  equality  of 
accommodation  does  not  mean  identity  of  accommoda- 
tion. And,  indeed,  the  railroad  company  is  not  liable  for 
damages  even  for  inequality  of  accommodation,  unless  it 
is  proved  that  the  plaintiff  actually  sustained  damages  by 
such  inequality.54 

Means  of  Separation 

The  actual  separation  of  the  races  is  accomplished  by 
requiring  railroads  to  furnish  on  each  passenger  train 
either  separate  cars  or  one  car  divided  into  separate  com- 
partments by  a  partition.  Each  State  gives  the  choice. 
In  case  of  the  division  of  the  car  into  compartments,  the 
partition  must,  in  Arkansas,  Oklahoma,  and  Kentucky,  be 
made  of  wood;  in  Kentucky,  Maryland,  Oklahoma,  and 
Texas,  it  must  be  "  substantial " ;  and  in  Maryland  and 
Texas,  it  must  have  a  door  in  it.  Arkansas  requires  only  a 

224: 


SEPARATION    OF   PASSENGERS    IN    RAILROAD    CARS 

partitioned  car  on  roads  less  than  thirty  miles  long,  but 
separate  cars  on  longer  roads,  though  a  train  on  any  road 
may  carry  one  partitioned  car. 

Maryland  and  North  Carolina  provide  that,  in  case 
the  car  or  compartment  for  either  race  becomes  filled  and 
no  extra  cars  can  be  obtained  and  the  increased  number 
of  passengers  could  not  have  been  foreseen,  the  conductor 
may  assign  a  portion  of  the  car  or  compartment  for  one 
race  to  the  passengers  of  the  other  race. 

Designation  of  Separation 

Several  States  specify  a  means  by  which  the  public 
shall  be  notified  of  the  existence  of  the  "Jim  Crow"  re- 
quirements. Arkansas  requires  the  law  to  be  posted  in 
each  coach  and  waiting-room;  Louisiana,  in  each  coach 
and  ticket-office;  Texas,  in  each  coach  and  depot.  In 
Kentucky,  Maryland,  Oklahoma,  and  Texas,  each  coach 
or  compartment  must  bear  in  some  conspicuous  place  ap- 
propriate words,  in  plain  letters,  to  indicate  the  race  for 
which  it  was  set  apart. 

Punishment  for  Violating  Law 

Certain  liabilities  are  incurred  for  the  violation  of  the. 
"Jim  Crow"  laws.  The  three  parties  concerned  are  the 
passenger,  the  conductor  or  manager  of  the  train,  and  the 
railroad  company  itself.  If  a  passenger  refuses  to  occupy 
the  coach  or  compartment  to  which  he,  by  his  race,  be- 
longs, the  conductor  may  refuse  to  carry  him  and  may 
eject  him  if  he  is  already  on  the  train;  and  for  this  nei- 
ther the  conductor  nor  the  railroad  company  is  liable.  In 
Georgia  and  Texas,  conductors  are  given  express  power 
16  225 


SEPARATION  OF  RACES  IN  PUBLIC  CONVEYANCES 

to  enforce  the  law,  and  in  other  States  the  power  is  im- 
plied. Some  States  punish  passengers  for  wilfully  rid- 
ing in  the  wrong  car  by  a  fine  ranging  from  a  minimum 
of  five  dollars  in  Maryland  and  Texas  to  a  maximum  of 
one  thousand  dollars  in  Georgia,  or  imprisonment  from 
twenty  days  in  Louisiana  to  six  months  in  Georgia. 

The  conductor  is  liable  for  two  kinds  of  offences:  (1) 
for  asssigning  a  passenger  to  a  car  or  compartment  to 
which  he  does  ont  by  race  belong,  and  (2)  for  failing  to 
separate  passengers.  Most  of  the  States  consider  the  two 
violations  as  one.  Only  Arkansas  and  Louisiana  pre- 
scribe separate  punishments  for  assigning  the  passenger  to 
the  wrong  car — a  fine  of  twenty-five  dollars  in  Arkansas 
and  a  fine  of  twenty-five  dollars  or  twenty  days'  imprison- 
ment in  Louisiana.  The  punishment  for  refusing  to  en- 
force the  law  is  a  fine  varying  from  a  minimum  of  five  dol- 
lars in  Texas  to  a  maximum  of  one  thousand  dollars  in 
Georgia,  or,  in  a  few  States,  imprisonment  of  varying 
length.  In  Texas,  the  fines  collected  are  applied  to  the 
common  school  fund  of  the  State. 

The  fine  imposed  upon  railroad  companies  for  failing 
or  refusing  to  furnish  separate  accommodations,  varies 
•between  twenty-five  dollars  and  one  thousand  dollars  for 
each  offence,  and  for  this  purpose  each  trip  that  the  train 
makes  is  considered  a  separate  offence.  If,  however,  the 
railroad  company  provides  the  required  separate  cars  or 
compartments  and  the  conductor  fails  to  enforce  the  law 
or  violates  its  provisions,  it  is  the  conductor,  not  the  com- 
pany, who  is  liable.5-"' 


226 


SEPARATION    OF   PASSENGERS    IN    STREET    CARS 

Separation  of  Postal  Clerics 

A  special  question  has  arisen  out  of  the  Federal  postal 
cars  on  which  both  white  and  colored  clerks  are  employed. 
At  present,  they  are  obliged  to  sleep  in  the  same  cars,  and 
at  the  terminals  of  long  runs  dormitories  are  provided  for 
them,  but  without  any  race  separation.  The  post-office  de- 
partment has  said  that  such  regulation  is  beyond  its  con- 
trol.56 Thus  the  matter  stands,  with  a  growing  discontent 
on  the  part  of  the  white  postal  clerks  to  be  so  intimately 
associated  with  the  colored  clerks. 

The  "  Jim  Crow "  laws  in  the  South,  so  far  as  the 
railroads  are  concerned,  are  very  nearly  complete.  Mis- 
souri, as  has  been  said,  is  the  only  one  of  the  Southern 
States  which  has  not,  by  express  enactment,  separated  the 
races. 

SEPARATION  OF  PASSENGERS  IN  STREET  CARS 

The  third  division  of  the  subject  is  the  separation  of 
races  in  street  cars.  This  is  a  field  of  much  more  active 
legislation  than  any  of  the  preceding,  in  which  much  has 
been  done  recently  and  in  which  much  more  is  likely  to 
be  done. 

Of  the  thirteeen  separate  coach  laws  just  considered, 
six  of  them — those  of  Alabama,  Arkansas,  Louisiana,  Mis- 
sissippi, South  Carolina,  and  Texas — except  street  rail- 
roads from  their  application.  Georgia  and  Oklahoma  alone 
make  their  laws  all  inclusive,  embracing  electric  and  street 
cars  as  well  as  railroad  coaches.  It  is  safe  to  assume  that 
the  laws  of  the  other  States  refer  only  to  railroad  coaches. 

227 


SEPARATION  OF  RACES  IN  PUBLIC  CONVEYANCES 

Present  Extent  of  Separation 

With  the  exception  of  the  early  law  of  Georgia  57  of 
1891,  the  "  Jim  Crow  "  street  car  laws  came  in  with  the  new 
century.  So  far,  eight  of  the  Southern  States  have  passed 
general  statutes  to  separate  the  races  on  street  cars,  in  the 
following  order:  Georgia,57  1891;  Louisiana,58  1902;  Mis- 
sissippi,59 1904;  Tennessee,60  and  Florida,61  1905;  Vir- 
ginia,62 1906,  and  North  Carolina,63  and  Oklahoma,84 
1907.  The  statute  of  Arkansas,05  of  1903,  might  be  in- 
cluded in  the  above  list,  but  it  applies  only  to  cities  of  the 
first  class.  Some  States  passed  laws  of  special  application 
before  they  made  them  general.  Thus,  in  1902,  the  legis- 
lature of  Virginia  66  separated  the  white  and  colored  pas- 
sengers on  street  cars  going  between  Alexandria  and  points 
in  Fairfax  and  Alexandria  Counties;  and  in  1901,  between 
Eichmond  and  Seven  Pines.  And  so  Tennessee,67  in  1903, 
made  the  regular  separate  coach  law  apply  to  street  cars 
in  counties  having  150,000  inhabitants  or  over,  as  shown 
by  the  census  of  1900  or  any  subsequent  Federal  census. 
Memphis  only  came  within  this  law.  In  1905,  South 
Carolina  68  required  the  separation  of  the  races  on  "  elec- 
tric railways  outside  of  the  corporate  limits  of  cities  and 
towns."  This  State  has  not  yet  made  the  law  general. 

The  extent  of  legislation  at  present  is  as  follows: 
Georgia  and  Oklahoma,  by  their  regular  "Jim  Crow" 
laws,  require  the  white  and  colored  passengers  on  street 
cars  to  be  separated.  Louisiana,  Mississippi,  Florida,  Ten- 
nessee, Virginia,  and  North  Carolina  have  separated  the 
races  by  statutes  specially  applicable  to  street  cars.  Ar- 
kansas, by  statute,  requires  a  separation  in  cities  of  the 

228 


SEPARATION  OP  PASSENGERS  IN  STREET  CARS 

first  class ;  and  South  Carolina,  on  suburban  lines.  Mary- 
land, South  Carolina,  Alabama,  Texas,  Kentucky  and 
Missouri  do  not,  by  statute,  require  the  races  to  be  sepa- 
rated on  street  cars  in  cities.  But  the  absence  of  legisla- 
tive enactments  does  not  mean  at  all  that  races  are  not 
actually  separated  on  street  cars.  In  order  to  find  out 
the  extent  of  actual  separation,  the  author  made  inquiry 
of  the  mayors  of  every  city  of  10,000  or  more  inhabitants 
in  the  Southern  States  and  in  West  Virginia  and  Kansas. 
Some  generalizations  may  be  made  from  the  almost  com- 
plete number  of  replies  received.  It  may  be  assumed  that 
the  races  are  separated  in  the  above-mentioned  States 
which  have  statutes  on  the  subject.  It  appears  that  the 
white  and  colored  passengers  are  not  separated  on  the  street 
cars  of  any  of  the  cities  of  Kansas,  Kentucky,  Maryland, 
Missouri,  and  West  Virginia.  In  the  absence  of  State 
laws,  either  the  municipal  authorities  or  the  street  railway 
companies  themselves  provide  for  and  require  separation 
in  the  cities  of  Alabama  and  South  Carolina.  Thus, 
though  there  is  no  ordinance  on  the  subject  in  Charleston, 
South  Carolina,  separation  is  required  by  the  company 
itself. 

Method  of  Separation 

The  city  ordinances  and  regulations  requiring  separa- 
tion on  street  cars  are  practically  the  same  as  the  State 
statutes  on  the  subject.  The  ordinances,  regulations,  and 
statutes  all  require  that  the  accommodations  for  passen- 
gers of  both  races  shall  be  equal.  The  three  methods  of 
separation  are  (1)  separate  cars,  (2)  partitioned  cars,  and 
(3)  seats  assigned  to  each  race.  The  only  city  that  un- 

229 


SEPARATION  OF  RACES  IN  PUBLIC  CONVEYANCES 

qualified!/  requires  separate  cars  is  Montgomery,  Alabama. 
The  ordinance  was  passed  October  15,  1906,  over  the 
mayor's  veto,  he  vetoing  it  because  he  believed  it  would  be 
impracticable.  When  the  law  went  into  effect,  November 
23,  the  service  was  materially  reduced  because  of  the 
scarcity  of  cars.69  The  State  laws  of  Florida,  Louisiana, 
and  Mississippi  give  the  choice  of  using  two  or  more  cars 
or  partitioned  cars.  A  number  of  the  ordinances  require 
that  the  cars  be  divided  either  by  movable  screens  or  par- 
titions. They  are  movable  so  as  to  apportion  the  seating 
capacity  to  the  requirements  of  each  race.  But  in  by  far 
the  greatest  number  of  cases,  the  separation  is  accom- 
plished by  the  conductor  assigning  white  and  colored  pas- 
sengers to  different  seats.  Practically  without  exception, 
the  colored  passengers  are  required  to  be  seated  from  the 
rear  to  the  front  of  the  car;  the  white,  from  the  front  to 
the  rear.  On  railroad  cars,  the  colored  passengers  are 
almost  invariably  assigned  to  the  front  compartments. 
The  colored  passengers  on  street  cars  are  seated  in  the 
rear  in  order — to  give  the  reason  as  stated  by  the  mayor 
of  Birmingham,  Alabama — to  do  "  away  with  the  disagree- 
able odors  that  would  necessarily  follow  the  breezes."  In 
the  closed  cars  of  that  city,  however,  the  colored  passengers 
are  seated  in  front  so  as  to  give  the  white  passengers  the 
rear  for  smoking.  In  other  cities,  the  two  rear  seats  are 
reserved  for  smoking,  so  the  colored  passengers  begin  to 
sit  on  the  third  seat  from  the  rear.  As  the  car  fills,  the 
races  get  nearer  and  nearer  to  one  another.  North  Caro- 
lina provides  that  white  and  colored  passengers  shall  not 
occupy  contiguous  seats  on  the  same  bench.  Virginia, 
likewise,  prohibits  white  and  colored  passengers  from 

230 


SEPARATION    OF    PASSENGERS   IN    STREET    CARS 

sitting  side  by  side  on  the  same  bench  unless  all  the  other 
seats  are  filled.  The  conductor  has  the  power  to  require 
passengers  to  change  their  seats  as  often  as  is  needful  to 
secure  actual  separation  of  the  races.  The  laws  do  not 
prohibit  the  running  of  special  cars  exclusively  for  either 
race,  provided  the  regular  cars  are  run. 

The  cars  or  compartments  are  to  be  clearly  designated 
to  show  to  which  race  they  belong.  Several  statutes  and 
ordinances  require  that  the  placard  "  WHITE  "  or  "  COL- 
ORED," in  plain  letters,  not  less  than  two  inches  high, 
shall  be  upon  each  end  of  the  car  or  compartment,  or 
upon  the  sides  of  the  open  cars.  A  recent  case  70  in  Mis- 
sissippi would  seem  to  hold  that  the  sign  must  be  large 
enough  to  be  seen  in  all  parts  of  the  car.  The  laws  of 
Mississippi  and  Louisiana  require  that  the  law  be  posted 
in  the  car;  in  Virginia,  the  substance  of  the  law  is  posted 
in  the  car.  In  Houston,  Texas,  the  race  to  which  the  seat 
belongs  is  posted  on  the  back  of  the  seat.  In  several  cities, 
any  one  tampering  with  such  a  sign  will  be  punished  by 
a  heavy  fine. 

The  law  of  North  Carolina  probably  contains  a  fatal 
defect  in  that  it  requires  separation  "  as  far  as  practi- 
cable." Of  course,  this  would  allow  the  conductors  or 
companies  to  make  numberless  exceptions.  As  a  matter  of 
fact,  most  of  the  North  Carolina  cities  had  been  contem- 
plating such  a  separation,  and,  when  the  law  went  into 
effect  the  first  of  April,  1907,  were  ready  to  regard  and 
enforce  it. 

Enforcement  of  Laws 

In  practically  all  of  the  cities,  the  street-car  conductors 
and  motormen  are  special  policemen  to  enforce  the  law. 

231 


SEPARATION  OF  RACES  IN  PUBLIC  CONVEYANCES 

For  the  ejectment  of  a  wilfully  disobedient  passenger,  they 
incur  no  penalty  either  upon  themselves  or  the  company. 
North  Carolina  provides  that  the  conductor  shall  not  be 
liable  if  he  makes  the  mistake  of  assigning  a  passenger  to 
the  wrong  seat.  In  several  of  the  cities,  it  is  the  duty  of 
the  regular  police  officers  to  arrest  passengers  whom  they 
see  riding  in  the  wrong  cars.  The  penalty  upon  the  con- 
ductor for  knowingly  failing  or  refusing  to  enforce  the 
law  varies  all  the  way  from  a  minimum  fine  of  one  dollar 
in  Montgomery,  Alabama,  to  five  hundred  dollars  in  Jack- 
sonville, Florida,  or  imprisonment  from  one  to  ninety 
days.  The  liability  of  the  company  is  correspondingly 
heavy  in  proportion.  Each  trip  made  without  providing 
for  the  requirements  of  the  law  is  expressly  declared  a 
separate  offence.  In  Pensacola,  Florida,  the  fine  upon  the 
company  for  not  furnishing  separate  accommodations  is 
fifty  dollars  a  day. 

When  a  passenger  consciously  disobeys  the  law,  he  may 
be  fined;  and  if  he  insists  upon  occupying  the  wrong  seat, 
the  conductor  may  eject  him  from  the  car.  According  to 
the  Virginia  law,  "  in  case  such  passenger  ejected  shall 
have  paid  his  fare  upon  said  car,  he  shall  not  be  entitled 
to  any  part  of  said  fare." 

Exemptions 

The  only  phase  of  these  "  Jim  Crow  "  street-car  laws 
which  has  given  rise  to  any  serious  discussion  is  the  ques- 
tion of  the  exemptions  from  application.  Most  of  the 
States  and  cities  simply  except  nurses  of  one  race  in 
attendance  upon  the  children  or  sick  of  the  other  race,  the 
nurse  going  into  the  car  to  which  the  child  or  sick  person 

233 


NOTES 

belongs.  Of  course,  the  street-car  employees  are  excepted, 
and  Virginia  excepts  officers  in  charge  of  prisoners  and 
lunatics.  But  Florida  and  North  Carolina  declared  that 
the  law  should  not  apply  to  colored  nurses  in  attendance 
upon  white  children  or  white  sick  people;  and  Augusta, 
Georgia,  has  the  same  in  its  ordinance.  The  constitution- 
ality of  the  Florida  law  was  tested  five  years  ago  in  the 
Supreme  Court 71  of  that  State,  and  was  declared  to  vio- 
late the  Fourteenth  Amendment,  the  court,  in  its  opinion, 
saying :  "  It  gives  to  the  Caucasian  mistress  the  right  to 
have  her  child  attended  in  the  Caucasian  department  of 
the  car  by  its  African  nurse,  and  withholds  from  the  Afri- 
can mistress  the  equal  right  to  have  her  child  attended  in 
the  African  department  by  its  Caucasian  nurse."  This  is 
the  same  discrimination  as  to  the  invalid  adult  Caucasian 
attended  by  a  colored  nurse.  As  soon  as  the  Florida  State 
law  was  declared  unconstitutional,  the  cities  passed  ordi- 
nances making  the  provision  apply  to  nurses  of  either 
race.  The  Forth  Carolina  law  was  never  tested,  for  it 
was  amended  before  a  test  case  reached  the  courts.  The 
North  Carolina  legislature  72  of  1909  obviated  all  possible 
difficulty  by  amending  its  law  to  the  effect  that  the  nurses 
of  the  children  or  sick  or  infirm  of  one  race  might  ride 
in  the  car  set  apart  for  the  race  of  the  infant  or  sick  or 
infirm  person  so  attended. 

NOTES 

1  Century  Dictionary,  I,  p.  546. 

2  Hid.,  IV,  p.  3233. 

3  Laws  of  Fla.,  1865,  p.  24. 

233 


SEPARATION    OF    RACES    IN    PUBLIC    CONVEYANCES 

4  Laws  of  Miss.,  1865,  pp.  231-32. 
6  Laws  of  Texas,  1866,  p.  97. 

6  Laws  of  Ga.,  1870,  pp.  427-28. 

7  Laws  of  Texas,  1871,  2d  sess.,  p.  16. 

8  Acts  of  La.,  1873,  pp.  156-57. 

9  Acts  of  Ark.,  1873,  pp.  15-19. 

10  Acts  and  Kesolves  of  Mass.,  1866-67,  p.  242. 

11  Laws  of  Pa.,  1867,  pp.  38-39. 

12  Laws  of  Del.,  1875-77,  p.  322. 

13  Derry  v.  Lowry,  1865,  6  Phila.  Rep.  30. 

14  West  Chester  and  Phila.  Ry.  Co.  v.  Mills,  1867,  55  Pa. 
S.  209. 

15  Pleasant  v.  N.  B.  &  M.  Ry.  Co.,  1868,  34  Calif.  586. 

16  C.  &  N.  W.  Ry.  Co.  v.  Williams,  1870,  55  111.  185. 

17  Coger  v.  N.  W.  Union  Packet  Co.,  1873,  37  la.  145. 

18  Ry.  Co.  v.  Brown,  1873,  17  Wall,  445. 

19  Acts  of  La.,  1869,  p.  37. 

20  95  U.  S.  485,  at  p.  489  (1875). 

21  U.  S.  v.  Dodge,  1877,  Fed.  Case  No.  14,976. 

22  Pub.  Laws  of  N.  C.,  1899,  pp.  539-40. 

23  Acts  of  Va.,  1899-1900,  p.  340. 

24  Ibid.,  extra  sess.,  1901,  pp.  329-30. 

25  Acts  of  S.  C.,  1904,  pp.  438-39. 

26  Green  v.  "City  of  Bridgeton,"  1879,  Fed.   Case  No. 
5,754. 

27 "  The  Sue,"  1885,  22  Fed.  843. 

28  Laws  of  Tenn.,  1881,  pp.  211-12. 

29  Laws  of  Fla.,  1887,  p.  116. 

30  Laws  of  Miss.,  1888,  pp.  45  and  48. 

31  Laws    of   Texas,    1889,    pp.    132-33;    1891,    pp.   44-45 
and  165. 

32  Act's  of  La.,  1890,  pp.  152-54;  1894,  pp.  133-34. 
88  Acts  of  Ala.,  1890-91,  pp.  412-13. 

234 


NOTES 

34  Acts  of  Ky.,  1891-92-93,  pp.  63-64. 

85  Acts  of  Ark.,  1891,  pp.  15-17;  1893,  pp.  200-01. 

36  Laws  of  Ga.,  1891,  I,  pp.  157-58;  1899,  pp.  66-67. 

37  Acts  of  S.  C.,  1898,  pp.  777-78;  1903,  p.  84;  1906,  p.  76. 

38  Pub.  Laws  of  N.  C.,  1899,  pp.  539-40;  1907,  pp.  1238- 
39;  1909,  p.  1256. 

39  Acts  of  Va.,  1899-1900,  pp.  236-37. 

40  Laws  of  Md.,  1904,  pp.  186-87. 

41  Laws  of  Okla.,  1907-08,  pp.  201-04. 

42  L.  N.  O.  &  T.  Ey.  Co.  v.  State,  1889,  6  S.  203 ;  Plessy 
v.  Ferguson,  1896,  163  U.  S.  537;  0.  Val.  Ky.  Rec.  v.  Lander, 
1898,  47  S.  W.  344;  C.  &  O.  Ry.  Co.  v.  Com.  of  Ky.,  1899,  51 
S.  W.  160. 

43  L.  N.  O.  &  T.  Ey.  Co.  v.  State,  1889,  6  S.  203. 

44  Anderson  v.  L.  &  N.  Ry.  Co.,  1894,  62  Fed.  46. 

45  O.  Val.  Ey.  Eec.  v.  Lander,  1898,  47  S.  W.  344. 

46  Smith  v.  State,  1898,  46  S.  W.  566. 

47  Chiles  v.  C.  &  0.  Ry.,  1907,  101  S.  W.  386. 

48  Pullman-Palace  Car  Co.  v.  Cain,  1897,  40  S.  W.  220. 

49  Smith  v.  Chamberlain,  1893, 17  S.  E.  391. 

50  C.  &  O.  Ry.  Co.  v.  Com.  of  Ky.,  1905,  84  S.  W.  566. 

51  L.  &  N.  Ey.  Co.  v.  Catron,  1897,  43  S.  W.  443. 

52  West  Chester  and  Phila.  Ey.  Co.  v.  Mills,  1867,  52  Pa. 
S.  209;  U.  S.  v.  Dodge,  1877,  Fed.  Case  No.  14,976;  Murphy 
v.  W.  &  A.  Ey.  Co.,  1885,  23  Fed.  637;  Logwood  v.  M.  &  C. 
Ry.  Co.,  1885,  23  Fed.  318;  Houck  v.  S.  Pac.  Ey.  Co.,  1888, 
38  Fed.  226;  Plessy  v.  Ferguson,  1896,  163  U.  S.  537. 

53  Logwood  v.  M.  &  C.  Ey.  Co.,  1885,  23  Fed.  318. 

84  Norwood  v.  G.  H.  &  S.  A.  Ey.  Co.,  1896,  34  S.  W.  180. 
88  L.  &  N.  Ey.  Co.  v.  Com.  of  Ky.,  1896,  37  S.  W.  79. 
56Ealeigh,  N.  C.,'News  and  Observer,  March  12,  1907. 

87  Laws  of  Ga.,  1891, 1,  pp.  157-58. 

88  Acts  of  La.,  1902,  pp.  89-90. 

235 


SEPARATION    OF    RACES    IN    PUBLIC    CONVEYANCES 

89  Laws  of  Miss.,  1904,  pp.  140-41. 

60  Acts  of  Tenn.,  1905,  pp.  321-22. 

61  Laws  of  Fla.,  1905,  pp.  99-100. 

62  Acts  of  Va.,  1906,  pp.  92-94. 

63  Pub.  Laws  of  N.  C.,  1907,  pp.  1238-39. 

64  Laws  of  Okla.,  1907-08,  pp.  201-04. 

65  Acts  of  Ark.,  1903,  pp.  178-79. 

66  Acts  of  Va.,  1901,  extra  sess.,  pp.  212-13 ;  1901-02,  pp. 
639-40. 

67  Acts  of  Tenn.,  1903,  p.  75. 

68  Laws  of  S.  C.,  1905,  p.  954. 

69  Ealeigh,  N.  C.,  News  and  Observer,  Nov.  23,  1906. 

70  Walden  v.  Vicksburg  Ey.  and  Light  Co.,  1906,  40  S.  751. 

71  State  v.  Patterson,  1905,  39  S.  398,  at  p.  400. 

72  Pub.  Laws  of  N.  C.,  1909,  p.  1256. 


CHAPTER   X 
NEGRO   IN   COURT   ROOM 

THE  Negro  goes  into  a  court  room  in  one  or  more  of 
six  capacities,  namely:  as  spectator,  witness,  juror,  party 
to  a  suit,  attorney,  or  judge.  It  is  in  each  of  these  ca- 
pacities that  the  Negro  in  the  court  Toom  is  to  be  consid- 
ered, but  some  of  them  permit  of  only  brief  mention. 
How  the  Negro  actually  fares  in  the  court  room — whether 
he  gets  justice  as  often  as  the  white  person  does,  whether 
his  testimony  has  as  much  weight  with  the  jury  and  court 
as  that  of  the  white  witness,  whether  the  Negro  attorney 
or  judge  is  accorded  as  much  courtesy  as  the  white  man 
in  a  similar  position — would  make  an  interesting  and 
profitable  study,  but  such  a  study  is  largely  outside  the 
field  of  this  investigation.  It  should  be  kept  in  mind  now, 
as  in  the  previous  chapters,  that  only  those  distinctions 
are  considered  which  have  come  within  the  pale  of  the 
law  since  1865,  either  in  the  form  of  statutory  enactment 
or  judicial  decision.  Where  mention  is  made  of  some  of 
the  actual  extralegal  race  distinctions  in  the  court  room, 
it  is  only  for  illustration. 

AS   SPECTATOR 

The  court  room,  while  the  court  is  in  session,  is  open  to 
all  citizens,  regardless  of  race  or  color.  No  instance  has 

237 


NEGRO   IN   COURT   ROOM 

been  found  either  in  the  statutes  or  judicial  reports  of 
one's  admission  to  or  exclusion  from  the  court  room  being 
dependent  upon  his  race  or  color.  It  is  to  be  noticed, 
however,  in  Southern  court  rooms  that  the  spectators  are 
separated  by  race,  Negroes  usually  occupying  seats  on  one 
side  of  the  room  and  white  people  on  the  other.  This 
must  be  entirely  a  matter  of  custom,  as  no  case  has  been 
found  of  such  separation  being  required  by  law  or  ordi- 
nance. While  this  point  has  not  been  deemed  important 
enough  for  a  special  investigation,  it  is  presumed  that  one 
will  find  the  races  separated  in  the  court  room  in  those 
States  or  communities  where  they  are  separated  in  other 
places — as  in  public  conveyances,  schools,  and  churches. 

A  Negro  in  the  South,  as  elsewhere,  has,  legally  and 
actually,  as  good  an  opportunity  to  observe  court  proceed- 
ings as  a  white  person,  though  custom  may  require  him  to 
sit  in  a  different  part  of  the  court  room  from  that  occu- 
pied by  the  latter. 

AS   JUDGE 

Little  within  the  scope  of  this  chapter  can  be  said  of 
the  Negro  as  a  judge.  There  are  cases  still  in  the  North  of 
Negroes  sitting  on  the  bench,  mostly  in  lower  courts,  and 
there  may  be  instances,  here  and  there,  in  the  South,  of 
Negroes  holding  judicial  offices.  Certainly,  the  Negro 
elector  is  eligible,  both  under  Federal  and  State  Constitu- 
tions, to  hold  a  judgeship.  Whether  or  not  there  are 
Negroes  on  the  bench  in  a  given  State  is  not  determined 
by  the  legislatures  or  the  courts,  but  by  the  appointing 
power  or  by  the  choice  of  the  people  at  the  polls. 


238 


AS    LAWYER 
AS   LAWYER 

A  Negro  is  eligible  to  practice  law  in  every  State ;  that 
is,  nothing  to  the  contrary  appears  in  any  of  the  State  or 
Federal  statutes  now  in  force.  Negroes  may  be  admitted 
to  the  bar  everywhere  upon  proving  the  same  qualifications 
and  passing  the  same  examinations  as  required  of  other 
applicants  for  license.  But  this  has  not  always  been  so. 
The  privilege  of  practicing  law  in  Iowa,1  for  instance, 
was,  until  1870,  restricted  to  white  males.  In  that  year 
it  was  extended  to  women  and  to  members  of  other  races 
than  the  white.  Only  one  State  appears  to  have  consid- 
ered it  needful  to  guarantee  by  statutory  enactment  the 
right  to  practice  law  to  the  Negro.  An  act  of  the  Colo- 
rado2 legislature  in  1897  reads:  "  No  persons  shall  be  de- 
nied the  right  to  practice  as  aforesaid  on  account  of  race 
or  sex." 

In  1877,  a  Negro,  with  a  license  to  practice  law  in 
Massachusetts  and  the  Circuit  and  District  courts  of  the 
United  States  in  the  city  of  Baltimore,  applied  for  a 
license  to  practice  in  the  State  courts  of  Maryland.  The 
laws  of  Maryland 3  of  1872  limited  the  privilege  of  admis- 
sion to  the  bar  to  white  male  citizens.  The  Negro  brought 
suit  because  he  was  refused  admission  to  the  Maryland  bar, 
and  the  Court  of  Appeals  of  Maryland 4  held  that  the 
State  had  a  right  to  limit  the  privilege  of  practicing  law 
to  white  males,  holding  that  such  a  limitation  did  not 
violate  the  Fourteenth  Amendment.  The  court  said,  in 
part :  "  The  privilege  of  admission  to  the  office  of  an  attor- 
ney cannot  be  said  to  be  a  right  or  immunity  belonging  to 
the  citizen,  but  is  governed  and  regulated  by  the  Legisla- 

239 


NEGRO   IN   COURT   ROOM 

ture,  which  may  prescribe  the  qualifications  required  and 
designate  the  class  of  persons  who  may  be  admitted.  The 
power  of  regulating  the  admission  of  attorneys  in  the 
courts  of  a  State  is  one  belonging  to  the  State,  and  not 
to  the  Federal  Government.  As  said  by  Mr.  Justice  Brad- 
ley in  Bradwell's  case : 5  '  In  the  nature  of  things  it  is  not 
every  citizen  of  every  age,  sex  and  condition  that  is  quali- 
fied for  every  calling  and  position.  It  is  the  prerogative 
of  the  legislator  to  prescribe  regulations  founded  on  na- 
ture, reason  and  experience,  for  the  due  admission  of  quali- 
fied persons  to  professions  and  callings  demanding  special 
skill  and  confidence.  This  fairly  belongs  to  the  police 
power  of  the  State.' ''•  According  to  the  opinion  in  this 
case,  which  has  not  been  overruled  so  far  as  has  been 
found,  a  State  legislature  may,  in  the  exercise  of  its 
police  power,  limit  the  privilege  of  practicing  law  to  white 
males  or  to  white  people,  and  thus  debar  the  Negro  alto- 
gether. In  the  latest  collection  of  Maryland  laws,  how- 
ever, that  of  1904,  no  mention  is  made  of  race  in  the 
prescribed  qualifications  for  admission  to  the  bar,  but  no 
express  repeal  has  been  found  in  the  annual  statutes  of  the 
law  of  1872  which  limited  the  privilege  of  practicing  law 
to  white  males.  The  presumption  is,  however,  that  Mary- 
land, in  common  with  the  other  States,  now  admits  Negro 
applicants  on  the  same  terms  as  white. 

It  is  generally  known  that  Negro  lawyers  in  the  South- 
ern States  are  few,  and  it  is  considered  that  the  field  there 
for  the  Negro  lawyer  is  not  promising.  There  were  seven 
hundred  and  twenty-eight  Negro  lawyers  in  the  United 
States  in  1900.  The  following  notice  in  The  Emmanuel 
Magazine  of  July  3, 1909,  a  monthly  publication  by  a  Negro 

240 


AS   WITNESS 

in  Washington,  North  Carolina,  is  interesting  in  this  con- 
nection :  "  Mr.  E.  W.  Canady,  a  respectable  colored  lawyer 
of  Durham,  N.  C.,  not  long  since  received  three  thousand 
four  hundred  dollars  for  his  service  at  the  bar  in  repre- 
senting one  case.  This  speaks  more  for  him  than  any- 
thing else  possibly  could.  It  shows  the  public's  confidence 
in  his  ability  both  as  a  lawyer  and  a  gentleman  of  integ- 
rity. It  also  shows  that,  at  least  in  some  cases,  a  Negro 
can  get  justice  in  a  Southern  court,  not  only  for  himself, 
but  for  others.  The  profession  of  law  is  the  most  difficult 
one  a  colored  man  can  follow  in  the  South,  because  he 
must  deal  with  white  judges,  white  jurors,  white  lawyers, 
and,  sometimes,  white  witnesses,  and  a  public  sentiment 
which  is  created  by  the  whites.  If  he  keep  his  soul  well 
equipoised  and  act  gently  and  manfully — not  bootlicking, 
but  seeking  the  peace  of  the  city  wherein  he  dwelleth,  as 
Jeremiah  advised  the  Jews  of  Babylon  to  do>  he  can  fare 
equally  as  well,  if  not  better,  in  the  South  as  he  can  in 
the  North.  I  was  not  a  little  surprised  when  I  asked  Mr. 
Canady  how  the  judges  treated  him  and  he  said,  '  Oh, 
they'll  treat  you  all  right,  if  you  act  rightly;  they  are 
bound  to  follow  the  law,  you  know.'  This  should  encour- 
age more  young  men  to  take  up  this  profession." 


AS  WITNESS 

When  one  comes  to  the  Negro  as  a  witness,  he  finds 
much  legislation  and  many  judicial  decisions,  but  they  are 
confined  largely  to  the  first  years  after  Emancipation ;  that 
is,  to  the  years  during  which  the  rights  and  privileges  of 
the  Negro  as  a  freeman  were  being  defined  and  fixed. 
17  241 


NEGRO   IN   COUET   ROOM 

The  Negro  slave  had  been  either  deemed  incompetent  as  a 
witness,  or,  if  deemed  competent,  his  testimony  was  ad- 
mitted only  in  certain  actions. 

In  1866,  a  white  man  in  Kentucky  was  indicted  for 
entering  the  house  of  a  Negro  and  committing  larceny. 
At  the  time  a  Negro  in  that  State  could  not  testify  against 
a  white  man.  A  Circuit  Court 6  of  the  United  States  de- 
cided that  it  could  take  jurisdiction  of  this  case  under  the 
Civil  Rights  Bill  of  1866,  holding  that  the  Negro,  as  a 
citizen,  had  the  right  to  be  a  witness  in  court.  This 
appears  to  be  the  only  case  in  which  the  Federal  court  has 
adjudicated  upon  the  right  of  a  Negro  to  testify. 

A  law  of  Alabama  7  of  1865  made  Negroes  competent 
to  testify  only  in  open  court  and  only  in  cases,  civil  or 
criminal,  to  which  a  freedman,  free  Negro,  or  mulatto, 
was  a  party.  This  was  reenacted  in  1867. 8  In  1886,  a 
white  man  in  Mobile  was  tried  for  the  murder  of  a  Negro. 
All  the  witnesses  for  the  prosecution  were  Negroes,  and  all 
for  the  defendant,  white  people.  The  question  of  the  color 
of  witnesses  was  raised,  and  the  city  court  of  Mobile 
charged :"....  it  is  immaterial  whether  the  witnesses 
were  white  or  black,  if  you  believe  beyond  a  reasonable 
doubt  that  black  witnesses  are  telling  the  truth,  it  is  as 
much  your  duty  to  convict  on  their  evidence  as  though 
they  were  white."  There  was  an  exception  to  this  charge, 
but  the  Supreme  Court  of  Alabama  9  overruled  the  excep- 
tion. The  present  law  of  Alabama  seems  to  be  that  the 
color  of  the  witness  is  immaterial  in  determining  his  com- 
petency. 

The  Supreme  Court  of  Arkansas,10  in  1869,  held  that 
by  the  Civil  Rights  Bill  of  1866  the  laws  prohibiting  Ne- 

242 


AS   WITNESS 

groes  from  testifying  became  inoperative.  No  other  case 
on  the  point  seems  to  have  arisen  in  the  State. 

The  Constitution  "  of  Florida  of  1865  permitted  Ne- 
groes to  testify  only  in  proceedings  founded  upon  injury 
to  a  Negro  or  in  cases  affecting  the  rights  and  remedies 
of  Negroes.  A  statute  12  of  the  same  year,  relative  to 
testimony  in  general,  provided  that  the  testimony  of  Ne- 
groes should  not  be  taken  by  deposition  in  writing  or  upon 
written  interrogation,  or  "  otherwise  than  in  such  manner 
as  will  enable  the  court  or  jury  to  judge  the  credibility 
of  the  witness." 

The  Constitution 13  of  Georgia  of  1865  made  it  the 
duty  of  the  general  assembly  to  provide  laws  prescribing  in 
what  cases  the  testimony  of  Negroes  should  be  admitted  in 
the  courts.  This  is  the  only  reference  to  the  Negro  as  a 
witness  found  in  the  Georgia  statutes  or  court  reports. 

Kentucky,14  in  1865,  provided  that  Negroes  and  mulat- 
toes  should  be  competent  witnesses  in  all  civil  proceed- 
ings in  which  Negroes  or  mulattoes  were  the  only  parties 
interested  in  the  issue,  and  in  all  criminal  proceedings  in 
which  Negroes  or  mulattoes  were  the  defendants.  In  1867, 
the  Court  of  Appeals  of  Kentucky  15  held  that  the  law  of 
Kentucky  prohibiting  a  Negro  from  testifying  against  a 
white  person  was  still  in  force  and  was  not  rendered  in- 
operative by  the  Civil  Rights  Bill  of  1866. 

The  Constitution16  of  Maryland  of  1867  provided 
that  no  person  should  be  incompetent  as  a  witness  on  ac- 
count of  race  or  color  unless  thereafter  so  declared  by  an 
act  of  the  general  assembly.  The  general  assembly  ap- 
pears not  to  have  acted. 

Mississippi,17  in  1865,  provided  that  freedmen,  free 
243 


NEGRO   IN   COURT   ROOM 

Negroes,  and  mulattoes,  should  be  competent  in  all  civil 
cases  to  which  a  freedman,  free  Negro,  or  mulatto  was  a 
party,  and  in  criminal  cases  in  which  the  crime  charged 
was  alleged  to  have  been  committed  by  a  white  person 
upon  a  freedman,  free  Negro,  or  mulatto.  But  in  1867, 
Negroes  were  given  the  right  to  testify  on  the  same  terms 
as  white  people.18  In  1865,  South  Carolina 19  declared 
that  Negroes  might  testify  in  cases  to  which  a  person  of 
color  was  a  party.  Tennessee,20  the  same  year,  provided 
that  Negroes  and  Indians  should  be  competent  as  wit- 
nesses "  in  as  full  measure  as  such  persons  are  by  an  act 
of  Congress  competent  witnesses  in  all  the  courts  of  the 
United  States." 

The  Constitution  21  of  Texas  of  1866  contains  the  fol- 
lowing section :  "  Africans  and  their  descendants  shall  not 
be  prohibited,  on  account  of  their  color  or  race,  from  tes- 
tifying orally,  as  witnesses,  in  any  case,  civil  or  criminal, 
involving  the  right  of  injury  to,  or  crime  against,  any  of 
them  in  person  or  property,  under  the  same  rules  of  evi- 
dence that  may  be  applicable  to  the  white  race;  the  cred- 
ibility of  their  testimony  to  be  determined  by  the  court 
or  jury  hearing  the  same;  and  the  legislature  shall  have 
power  to  authorize  them  to  testify  as  witnesses  in  all  other 
cases,  under  such  regulations  that  may  be  prescribed,  as  to 
facts  hereafter  occurring."  In  pursuance  of  this  author- 
ity, the  legislature  22  enacted  that  persons  of  color  should 
not  testify  except  where  a  prosecution  was  against  a  per- 
son of  color  or  where  the  alleged  offence  was  against  the 
person  or  property  of  a  person  of  color.  But  in  1868,  the 
Supreme  Court23  of  Texas  held  that  the  first  section  of 
the  Civil  Eights  Bill  gave  Negroes  the  right  to  testify, 

244 


AS   WITNESS 

and  in  1871  the  legislature  24  said  that  in  the  courts  of  that 
State  there  shall  be  no  exclusion  of  any  witness  on  account 
of  color. 

Virginia,25  in  1866,  provided  that  Negroes  and  Indians 
should  be  competent  to  testify  in  cases  in  which  a  Negro 
or  Indian  was  a  party.  The  testimony  of  Negroes  had  to 
be  "  ore  tenus,  and  not  by  deposition."  The  next  year, 
this  law  was  repealed  and  a  statute  28  enacted  that  colored 
persons  should  be  competent  to  testify  "  as  if  they  were 
white." 

Thus  far  the  legislation  on  Negro  testimony  in  the 
Southern  States  only  has  been  given.  Similar  questions 
have  arisen  in  some  of  the  other  States.  Thus,  by  an  early 
statute  of  California  27  "  no  Indian,  or  person  having  one- 
half  or  more  Indian  blood,  or  Mongolian,  or  Chinese,"  was 
permitted  to  give  evidence  in  favor  of  or  against  a  white 
person.  The  Supreme  Court28  of  the  State  held  in  1869 
that  this  statute  violated  the  Civil  Eights  Bill  and  was 
therefore  null  and  void.  A  minority  of  the  court,  however, 
dissented  on  the  ground  that  the  Civil  Eights  Bill  itself 
was  unconstitutional  as  interfering  with  the  domestic 
relations  of  citizens. 

A  law  of  Indiana  29  of  1865  provided  that  all  persons 
of  competent  age,  without  distinction  as  to  color  or  blood, 
should  be  competent  as  witnesses,  but  provided  that  no 
Negro  or  mulatto  who  had  come,  or  who  should  thereafter 
come  into  this  State  in  violation  of  the  thirteenth  article 
of  .the  Constitution  of  the  State  (prohibiting  the  immigra- 
tion of  free  Negroes)  should,  while  said  article  continued 
in  force,  be  competent  as  a  witness  in  any  case  in  which  a 
white  person  was  a  party  in  interest.  It  also  provided  30 

245 


NEGRO   IN    COURT    ROOM 

that  where  a  Negro,  Indian,  or  person  excluded  on  account 
of  mixed  blood  was  a  party  in  the  case,  his  opponent 
should  be  excluded.  Nevada,31  the  same  year,  gave  Ne- 
groes the  right  to  testify,  but  not  in  favor  of  or  against 
a  white  person,  and  also  provided  that  the  credibility  of 
such  Negro,  black,  or  mulatto  person  should  be  left  en- 
tirely with  the  jury.  Washington,32  in  1866,  provided 
that  no  one  should  be  incompetent  as  a  witness  "  by  reason 
of  having  Negro  blood."  But  in  1869,  the  legislature  33 
said  that  Indians  or  persons  having  over  one-half  Indian 
blood  should  not  be  competent  to  testify  in  an  action  or 
proceeding  to  which  a  white  person  was  a  party.  West 
Virginia  34  passed  a  law  in  1866  that  no  person  should  be 
incompetent  as  a  witness  on  account  of  race  or  color. 

During  the  first  years  after  Emancipation,  the  States 
were  very  doubtful  of  the  Negro's  fitness  as  a  witness.  In 
saying,  as  many  of  them  did,  that  he  could  be  a  witness 
only  in  cases  in  which  a  Negro  was  a  party,  they  were  fol- 
lowing the  "  Black  Laws  "  before  the  War,  to  which  ref- 
erence was  made  in  the  chapter  on  "The  Black  Laws  of 
1865-68."  That  they  were  doubtful  of  the  testimony  of 
the  Negro  is  shown  by  the  provision  of  the  act  that  the 
Negro's  credibility  should  be  the  subject  of  a  special 
charge  by  the  court  and  that  his  testimony  should  be  given 
orally.  It  has  been  seen  that  some  of  the  States  soon  re- 
pealed their  laws  discriminating  against  the  Negro  as  a 
witness,  and  that  others  enacted  statutes  allowing  him  to 
testify  upon  the  same  terms  and  conditions  as  a  white  per- 
son. In  some  of  the  States,  the  records  do  not  show  that 
the  right  to  testify  in  court  has  yet  been  given  to  the 
Negro.  But  it  must  be  taken  as  settled  that,  even  in  those 

246 


AS   JUROR 

States  which  are  silent  on  the  subject,  the  Negro  does 
have  the  same  right  to  testify  as  the  white  person.  How 
much  weight  is  actually  given  to  his  testimony  is  a  mat- 
ter not  of  law,  but  of  fact,  to  be  determined  by  the  trier 
of  fact,  or  jury,  as  the  case  may  be.  It  may  be  said,  in 
short,  that,  at  present,  the  right  of  the  Negro  to  testify  in 
court  is  precisely  co-extensive  with  the  right  of  the  white 
person. 

AS  JUEOR 

Most  of  the  legislation  and  suits  concerning  the  Negro 
as  a  witness  came  during  the  years  between  1865  and 
1870.  Since  then,  the  right  of  the  Negro  to  testify  in 
court  has  been  generally  undisputed.  With  the  Negro  as 
a  juror,  it  has  been  different.  There  has  not  been  a  great 
deal  of  legislation  about  the  Negro  as  a  juror,  not  even 
during  the  years  1865-70  which  were  so  prolific  of  race 
legislation.  But  the  court  reports  from  1865  have  been 
abundantly  supplied  with  cases  that  have  to  do  with  the 
Negro  as  a  juror,  not  referring  so  much  to  his  right  to 
serve  as  to  his  actual  service  on  the  jury.  First,  reference 
will  be  made  to  the  legislation  on  the  topic,  then  a  number 
of  cases  will  be  discussed,  most  of  which  have  turned  upon 
a  few  fundamental  principles  of  constitutional  law,  and, 
finally,  a  word  will  be  said  of  Negro  jury  service  as  it 
actually  exists. 

The  fourth  section  of  the  Civil  Eights  Bill 35  of  1875 
reads :  "  That  no  citizen  possessing  all  other  qualifications 
which  are  or  may  be  prescribed  by  law  shall  be  disqualified 
for  service  as  grand  or  petit  juror  in  any  court  of  the 
United  States,  or  of  any  State,  or  account  of  race,  color, 

247 


NEGRO   IN    COURT   ROOM 

or  previous  condition  of  servitude,  and  any  officer  or  other 
person  charged  with  any  duty  in  the  selection  or  summon- 
ing of  jurors  who  shall  exclude  or  fail  to  summon  any  citi- 
zen for  the  cause  aforesaid  shall,  upon  conviction  thereof, 
be  deemed  guilty  of  a  misdemeanor,  and  be  fined  not  more 
than  five  thousand  dollars."  As  was  seen  in  the  previous 
chapter  on  the  civil  rights  of  Negroes,  the  first  sections  of 
the  Civil  Eights  Bill  were  declared  unconstitutional  in 
1883.  But,  as  will  be  seen  in  the  discussion  of  the  cases 
that  have  arisen  about  the  Negro  as  a  juror,  the  section 
quoted  above  has  stood  the  test  of  constitutionality  and  is 
still  a  part  of  our  Federal  statute  law. 

When  the  States  outside  the  South  saw,  in  1883,  that 
the  Federal  Government  was  impotent  to  secure  civil 
rights  to  Negroes,  they  began  to  enact  Civil  Eights  Bills 
of  their  own,  which  virtually  copied  the  Federal  statutes 
of  1875.  The  following  States  enacted  statutes  practically 
the  same  as  the  Federal  law  referring  to  jury  service :  Indi- 
ana,38 in  1885 ;  Michigan,37  in  1885;  New  York,38  in  1895; 
Ohio,39  in  1884,  and  Ehode  Island,40  in  1885.  The  only 
difference  between  these  State  statutes  and  the  Federal 
statute  is  in  the  punishment  for  keeping  a  person  off  the 
jury  because  of  his  race  or  color.  Indiana  and  Michigan 
impose  a  fine  of  not  less  than  one  hundred  dollars  or  im- 
prisonment of  not  more  than  thirty  days,  or  both;  New 
York  imposes  a  fine  of  from  one  hundred  dollars  to  five 
hundred  dollars  or  imprisonment  from  thirty  to  ninety 
days,  or  both ;  Ohio  imposes  a  fine  from  fifty  dollars  to  five 
hundred  dollars  or  imprisonment  between  thirty  and 
ninety  days,  or  both;  Ehode  Island  imposes  a  fine  not  to 
exceed  one  hundred  dollars.  This  is  practically  all  of 

248 


AS   JUROR 

the  jury  legislation  outside  the  South,  which  has  been 
found. 

In  Arkansas,41  in  1867,  a  law  granting  certain  rights  to 
Negroes  had  the  following  provision :  "  That  nothing  herein 
contained  shall  he  construed  to  repeal  or  modify  any  statute 
or  common  law  usage  of  this  State  respecting  .  .  .  service 
on  juries."  Though  nothing  is  said  of  it,  one  may  infer 
that  this  meant  that  Negroes  were  not  to  sit  on  juries.  A 
Louisiana42  law  of  1880  states  that,  in  the  selection  of 
jurors,  "  there  shall  be  no  distinction  made  on  account  of 
race,  color,  or  previous  condition."  This  State  at  the  time 
was  in  the  hands  of  the  Reconstructionists.  Mississippi,43 
in  1867,  provided  that  freedmen  should  not  be  competent 
to  serve  as  petit  or  grand  jurors.  A  law  of  Tennessee  44  of 
1866,  giving  Negroes  the  right  to  testify,  had  the  provision 
that  it  should  not  be  construed  to  give  colored  persons  the 
right  to  sit  on  juries  in  that  State.  The  same  year,  a 
law45  repealing  certain  other  acts  had  the  provision  that 
nothing  in  the  act  should  be  construed  to  admit  persons  of 
color  to  serve  on  the  jury.  But  in  1868,  the  Negroes  of 
Tennessee  46  were  given  full  rights  in  this  respect.  This 
appears  to  be  all  of  the  legislation  as  to  Negro  jurors  in 
the  South  between  1865  and  the  present. 

That  the  statute  of  1875  prohibiting  the  exclusion  of 
persons  from  jury  service  on  account  of  race,  color,  or  pre- 
vious condition  of  servitude  is  constitutional,  has  been 
decided  in  a  series  of  cases  before  the  Supreme  Court  of 
the  United  States.47  The  mere  fact  that  no  Negroes  are 
on  a  certain  jury  does  not  indicate  that  the  Fourteenth 
Amendment,  under  which  all  these  jury  cases  arise,  has 
been  violated;  it  must  be  shown  that  the  Negroes  were 

849 


NEGRO   IN   COURT   ROOM 

kept  off  the  jury  consciously  by  State  officials  because  of 
their  race,  color,  or  previous  condition.48  The  Fourteenth 
Amendment  is  violated,  however,  when  the  officers  of  the 
State  keep  Negroes  off  the  juries  for  these  causes.  The 
Supreme  Court49  of  the  United  States  said  in  1899: 
"  Whenever  by  an  action  of  a  State,  whether  through  its 
legislature,  through  its  courts,  or  through  its  executive  or 
administrative  officers,  all  persons  of  the  African  race  are 
excluded,  solely  because  of  their  race  or  color,  from  serving 
as  grand  jurors  in  the  criminal  prosecution  of  a  person  of 
the  African  race,  the  equal  protection  of  the  laws  is  denied 
to  him  contrary  to  the  Fourteenth  Amendment  to  the 
Constitution  of  the  United  States." 

A  custom  seems  to  have  grown  up  among  some  lawyers, 
particularly  in  the  South,  to  move  to  quash  the  indictment 
whenever  a  Negro  is  on  trial  for  a  crime  and  there  are 
no  Negroes  on  the  grand  jury.  With  almost  absolute 
uniformity,  the  State  courts  have  held  that  there  is  no 
ground  for  quashing  the  indictment  unless  it  is  shown  that 
Negroes  were  kept  off  the  juries  purposely  and  because  of 
their  race  or  color.50  The  cases  show  also  that,  if  a  Negro 
is  kept  off  the  grand  jury  because  of  his  race,  there  is 
ground  for  quashing  the  indictment.  Texas  has  furnished 
far  more  of  these  jury  cases  than  any  other  Southern  State. 
Wherever  the  jury  commissioners  have  betrayed  in  any 
way  the  fact  that  they  kept  Negroes  off  the  juries  because 
of  their  race,  the  indictment  has  been  quashed.  A  few 
instances  will  suffice.  In  one  case  the  commissioners  said 
that  they  did  not  put  Negroes  on  the  jury  because  they 
considered  them  unfit;  this  was  held51  to  be  in  violation 
of  the  Fourteenth  Amendment.  When,  again,  they  said 

250 


AS   JUROR 

that  they  kept  Negroes  off  the  juries  because  their  pres- 
ence "  would  be  offensive  to  the  white  jurors,"  the  indict- 
ment was  quashed.52  In  a  county  of  11,000  voters  in 
Texas,  about  1,000  of  them  were  Negroes,  of  whom  600 
or  700  were  competent  to  be  jurors.  No  Negro  had  ever 
been  on  a  jury  there.  The  commissioners  admitted  that 
they  would  not  put  a  Negro  on  if  they  knew  it.  The 
indictment  was  quashed.53  In  another  case,54  they  said 
they  would  not  put  Negroes  on  juries  because  it  would 
create  a  conflict  between  the  races  which  would  injure 
the  Negroes.  This  was  held  a  sufficient  admission  to 
quash  the  indictment.  In  a  case  arising  as  late  as  1903, 
the  commissioners  undertook  to  satisfy  the  Fourteenth 
Amendment  by  putting  on  a  Negro.  They  put  on  a  Negro 
who  had  either  moved  out  of  the  county  or  was  dead. 
This  was  held  to  be  enough  of  a  race  discrimination  to 
quash  the  indictment.55 

No  matter  how  large  a  percentage  of  the  population 
is  colored,  if  it  is  not  proved  that  Negroes  were  kept  off 
the  jury  because  of  race  or  color,  there  is  no  ground  for 
objection.  Thus,  it  was  found  that  a  Negro  had  never 
been  known  to  sit  on  a  grand  jury  in  Bexar  County, 
Texas,  where  there  were  7,000  or  8,000  possible  jurors, 
of  whom  600  or  700  were  colored.  It  was  not  proved, 
however,  that  they  were  kept  off  on  account  of  race  or 
color,  and  it  was  held  that  there  was  no  ground  for 
quashing  an  indictment.56 

The  following  interesting  case  arose  in  Utah  in  1900 : 
A  white  person  refused  to  serve  on  a  jury  with  a  Negro, 
and  wrote  a  note  making  a  complaint.  The  Negro  was 
thereupon  excluded  from  the  jury.  Later,  the  Negro 

251 


NEGRO   IN    COURT   ROOM 

brought  an  action  against  the  white  man  to  recover  dam- 
ages to  the  extent  of  the  jury  fees.  The  court  held  57  that, 
while  color  was  not  a  test  of  one's  fitness  to  he  a  juror,  a 
written  objection  to  serve  on  a  jury  with  a  Negro  is  no 
ground  for  an  action  for  damages  by  a  colored  man. 

The  latest  case  of  race  distinction  in  juries  comes 
from  Oklahoma.  There  were  four  Negroes  on  a  jury,  and 
for  that  reason  the  judge  discharged  the  jury.  He  said 
that  the  State  had  separate  cars,  separate  schools,  and 
separate  tables  for  Negroes  and  whites,  and  "he  would 
not  insult  white  men  by  making  them  serve  on  a  jury  with 
Negroes."  The  case  is  so  recent  as  to  be  reported,  as  yet, 
only  in  the  newspapers.58 

The  constitutional  right  of  the  Negro  to  serve  on  a  jury 
or  to  be  tried  before  a  jury  composed,  in  whole  or  in  part, 
of  Negroes,  is  well  expressed  in  a  recent  Texas  case  59  as 
follows :  "  It  is  not  a  question  as  to  the  right  of  a  Negro,  or 
any  number  of  Negroes,  to  sit  on  a  grand  jury,  that  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United 
State  was  intended  to  provide  for;  but  it  was  intended, 
where  a  Negro  was  on  trial,  to  prevent  discrimination 
against  the  Negro  race  in  the  formation  of  the  grand  jury, 
which  presented  the  indictment,  and  only  in  case  Negroes 
are  intentionally  excluded  from  the  grand  jury  is  he  de- 
nied the  equal  protection  of  the  laws.  It  was  never  in- 
tended by  the  Fourteenth  Amendment  to  guaranty  a  Negro 
defendant  a  full  Negro  grand  jury,  or  to  guaranty  to  him 
any  particular  number  of  grand  jurors,  but  it  was  in- 
tended to  prevent  intentional  exclusion  from  the  grand 
jury." 


AS   JUROR 

Actual  Jury  Service  by  Negroes  in  South 

In  treating  the  Negro  as  a  juror,  the  writer  departed 
from  the  habit  of  confining  his  discussion  to  the  race  dis- 
tinctions manifested  in  statutes  and  judicial  reports.  As 
he  went  through  the  statutes  and  reports,  these  questions 
arose  in  his  mind :  Do  Negroes  actually  serve  on  the  juries 
in  those  communities  where  they  are  numerous?  If  so, 
what  satisfaction  have  they  given  ?  In  order  to  obtain  an- 
swers to  these  questions,  he  sent  out  letters  to  the  clerks 
of  court  in  every  county  in  the  Southern  States  in  which 
Negroes  constituted  one-half  or  more  of  the  population  in 
1900.  Over  three  hundred  letters  were  sent  out  contain- 
ing the  following  inquiry :  "  I  wish  to  know  to  what  ex- 
tent Negroes  actually  serve  on  juries,  how  Negro  jurors 
are  regarded  by  the  court  and  the  people  at  large,  whether 
the  number  of  colored  jurors  has  increased  or  decreased 
in  late  years,  what  has  been  the  experience  of  your  county 
as  to  the  satisfaction  of  colored  jurors  ?  "  Of  course,  as 
many  replies  were  not  received;  but  the  replies  that  were 
received  indicate  the  extent  of  Negro  jury  service  in  the 
Southern  States.  These  replies  will  be  quoted  from  freely 
in  each  case,  the  State  and  the  number  of  Negroes  and 
white  people  in  the  particular  county  will  be  given,  but 
not  the  name  of  the  county. 

Alabama. — County  No.  1,  10,000  white  people,  13,000 
Negroes :  "  Negroes  are  not  allowed  to  sit  upon  juries  in 
this  county.  It  sometimes  happens  that  names  of  Negroes 
are  placed  in  our  jury-box  by  mistake  on  the  part  of  the 
jury  commissioners,  and  are  regularly  drawn  to  serve  as 
jurors;  this,  however,  is  a  very  rare  occurrence.  Once  in 

253 


NEGRO   IN   COURT   ROOM 

the  past  four  years,  a  Negro  was  drawn  as  a  grand  juror 
(by  mistake)  who  appeared  and  insisted  upon  the  court's 
impaneling  him  with  other  jurors,  which  was  done  in  ac- 
cordance with  law,  the  court  having  no  legal  right  to  dis- 
charge or  excuse  him.  My  recollection  is  he  served  two 
days,  when  he  was  taken  out  at  night  and  severely  beaten, 
and  was  then  discharged  on  his  own  petition  by  the  court. 
This  will  convey  to  your  mind  that  Negro  jurors  are  not 
very  wholesomely  regarded  and  tolerated  in  this  county. 
The  fact  is,  Negroes  have  never  been  or  never  will  be 
allowed  to  sit  on  juries  in  this  county." 

County  No.  2,  5,000  white  people,  21,000  Negroes :  "  I 
have  lived  in  this  county  for  more  than  sixty-six  years,  and 
we  have  never  had  a  Negro  juror  in  that  time,  nor  do  I 
ever  expect  to  see  one  in  the  jury-box  in  this  county.  Our 
adjoining  counties  have  all  had  them,  a  number  of  years 
ago." 

County  No.  3,  5,000  white  people,  27,000  Negroes: 
"  Negroes  do  not  serve  on  juries  in  our  courts.  Such  a 
state  of  affairs  would  be  considered  by  the  people  of  this 
county  as  farcical.  The  Lord  defend  us  from  having 
jurors  of  a  race  of  people  who  are  absolutely  without  re- 
gard for  an  oath." 

Arkansas. — County  No.  1,  1,800  white  people,  12,600 
Negroes :  "  No  Negroes  serve  in  this  county  on  regular 
juries.  Sometimes  when  hard  to  obtain  white  jurors,  a 
few  Negroes  may  be  taken  in  cases  in  J.  P.  Courts,  but 
not  often.  Even  this  habit  is  smaller  than  formerly,  fall- 
ing off  every  year.  Colored  jurors  [are]  not  looked  upon 
as  intelligent,  and  very  few  as  honest  and  possessing  integ- 
rity, and  they,  as  a  rule,  are  also  uneducated." 

254 


AS   JUROR 

County  No.  2,  14,000  white  people,  29,800  Negroes: 
"  No  Negroes  have  served  on  juries  in  the  court  of  this 
county  since  1894.  Prior  to  that  time  it  was  a  common 
thing  for  them  to  be  in  the  majority.  I  believe  the  Ne- 
groes are  fairly  well  pleased  with  the  verdicts  of  all  white 
jurors,  as  the  question  is  nearly  always  propounded  to  the 
juror,  when  it  is  a  Negro  defendant :  '  Would  you  give  the 
defendant  the  same  consideration  as  if  he  was  a  white 
man?'" 

Florida.— County  No.  1,  17,000  white  people,  22,000 
Negroes :  "  It  has  been  many  years  since  a  Negro  sat  upon 
a  jury  in  this  court,  and  the  probability  is,  it  will  be  many 
more.  Negroes  are  not  regarded  as  good  jurors,  and  I  be- 
lieve it  to  be  a  fact  that  a  Negro  would  prefer  being  tried 
by  a  white  jury  than  a  mixed  jury,  or  a  jury  composed 
wholly  of  Negroes;  this  applies  to  both  civil  and  criminal 
matters." 

County  No.  2,  11,000  white  people,  12,000  Negroes: 
"  Negroes  do  not  sit  on  the  jury  in  this  county,  and  have 
not  since  the  days  of  '  Carpet-Bag  Rule.'  I  do  not  think  a 
county  in  this  State  permits  a  Negro  juryman." 

County  No.  3,  6,000  white  people,  8,000  Negroes :  "  Ne- 
gro jurymen  or  other  officers  are  a  thing  of  the  past  in  our 
county  and  State.  The  oldest  person  can  hardly  recall 
the  time  when  we  had  such  in  our  county,  with  the  excep- 
tion of  a  very  few  years  just  after  the  war." 

County  No.  4,  9,000  white  people,  15,000  Negroes: 
".  .  .  in  the  circuit  court  of  the  State  it  is  very  seldom 
that  a  Negro  serves  on  the  jury.  Negroes,  as  a  rule,  are 
not  good  jurors,  for  the  reason  that  they  are  usually  very 
ignorant  and  can  be  easily  influenced  by  others  in  the 

255 


NEGRO   IN   COURT   ROOM 

rendering  of  their  verdict.  The  Negro  jurors,  so  far  as 
the  State  courts  are  concerned,  are  almost  eliminated.  In 
the  Federal  courts  of  the  State,  a  large  number  of  Negroes 
serve  on  the  juries.  .  .  ." 

County  No.  5,  2,300  white  people,  2,700  Negroes: 
"  The  laws  of  this  State  require  that  the  county  commis- 
sioners select  not  less  than  290  nor  more  than  310  '  persons 
of  approved  integrity,  fair  character,  sound  judgment  and 
intelligence '  to  serve  as  jurors.  Therefore,  because  most 
of  the  elder  Negroes  are  illiterate  and  because  most  of  the 
younger  ones  that  remain  here  are  of  other  than  fair  char- 
acter, there  are  but  few  Negroes,  about  one  per  cent.,  whose 
names  are  drawn  or  selected  to  go  into  the  jury-box.  If 
one  is  drawn  as  juror  ...  he  serves  as  such  juror,  and 
no  one  has  ever  objected  to  one  so  far  as  I  know  of.  My 
experience  covers  a  period  of  ten  years,  during  which  time 
...  we  have  had  only  two  Negroes  drawn  as  jurors.  No 
person  has  ever  appealed  a  case  on  account  of  not  having 
a  Negro  on  the  jury,  nor  has  there  been  anything  said  out- 
side on  account  of  the  practical  elimination  of  the  Negro 
from  jury  duty." 

Georgia.— County  No.  1,  5,000  white  people,  24,000 
Negroes :  "  No  Negroes  serve  on  our  jury.  There  are  no 
Negro  names  in  the  jury-box." 

County  No.  2,  5,900  white  people,  6,800  Negroes :  "  No 
Negroes  have  ever  been  placed  in  the  jury-box  in  this 
county.  They  are  not  regarded  as  competent  or  reliable  as 
jurors,  hence  they  have  not  [been]  tried  as  such  in  this 
county." 

County  No.  3,  5,000  white  people,  12,000  Negroes: 
"  Negroes  do  not  serve  as  jurors  in  this  county,  for  several 

256 


AS   JUROR 

reasons  to  wit:  Incompetency,  strong  prejudices,  super- 
stitiousness,  and  general  unfitness  in  regard  to  equity.  .  .  . 
It  happens  frequently  they  are  drawn  and  serve  on  juries 
in  what  we  term  here  United  States  courts.  .  .  ." 

County  No.  4,  1,500  white  people,  8,800  Negroes: 
"  Negroes  do  not  serve  on  the  juries  in  this  county.  .  .  . 
None  of  the  Negroes  in  this  county  have  ever  been  placed 
in  such  [jury]  boxes." 

County  No.  5,  4,000  white  people,  9,000  Negroes :  "  We 
do  not  have  Negroes  as  jurors;  we  tried  them  and  found 
them  incompetent  and  otherwise  disqualified." 

County  No.  6,  7,000  white  people,  11,000  Negroes : 
"  No  Negroes  serve  on  the  jury  in  this  county." 

County  No.  7,  4,800  white  people,  5,000  Negroes: 
"  Not  a  blooming  one  [Negro  juror],  and  not  likely  to  be." 

County  No.  8,  2,000  white  people,  5,800  Negroes: 
"There  are  no  Negro  jurors  in  this  county." 

County  No.  9,  6,000  white  people,  7,000  Negroes :  "  I 
have  lived  here  all  my  life  and  do  not  know  that  there  has 
been  any  Negro  who  has  served  on  the  jury  in  this  county. 
I  am  quite  sure  there  has  been  none  for  the  past  20  or  30 
years."  , 

County  No.  10,  2,500  white  people,  4,000  Negroes: 
".  .  .  There  has  never  been  a  Negro  juror  to  serve  in  this 
country  nor  any  other  county  surrounding  this  to  my 
knowledge.  We  revise  our  jury-boxes  biennially,  and 
never  have  yet  put  a  Negro's  name  on  the  list  of  jurors. 
And  I  think  this  is  the  practice  all  over  the  State.  I  am 
satisfied  if  one  should  be  put  on  any  jury  that  the  white 
men  on  would  flatly  refuse  to  serve  at  all.  .  .  ." 

County  No.  11,  5,000  white  people,  6^00  Negroes: 
18  257 


NEGRO   IN   COURT   ROOM 

".  .  .  There  is  no  record  of  Negroes  ever  serving  as  jurors 
in  this  county." 

Kentucky. — No  replies  have  come  from  the  seven 
counties  of  Kentucky  in  which  Negroes  constitute  a  large 
percentage  of  the  population.  But  the  following  is  quoted 
from  a  letter  from  the  Assistant  Attorney  General  of  the 
State:  "Negro  jurors  are  sometimes  selected  in  various 
parts  of  the  State,  and  I  presume  all  over  the  State. 
Twenty  years  ago  the  custom  was  more  prevalent  than  at 
present  of  putting  Negroes  on  the  juries.  They  were  the 
best  class  of  Negroes,  and  I  am  reliably  informed  that  in 
various  parts  of  the  State  the  Negroes  themselves  re- 
quested to  be  left  oil  the  juries,  which  may  account  for 
the  fact  that  the  practice  seems  to  have  fallen  into  dis- 
use." 

Louisiana. — Parish  No.  1,  3,900  white  people,  12,700 
Negroes:  ".  .  .  we  now  have  no  Negroes  to  serve  on  the 
jury  here  at  all.  Some  years  ago  we  had  Negro  jurors, 
but  they  proved  so  unsatisfactory  that  they  were  grad- 
ually dropped  out  and  for  several  years  [we]  have  had  no 
Negroes  at  all." 

Parish  No.  2,  8,800  white  people,  11,300  Negroes: 
".  .  .  Negroes  serve  as  jurors  in  this  parish  to  a  limited 
extent.  The  jury  commissioners,  when  they  know  of  an 
exceptionally  good,  honest,  sober  and  industrious  Negro, 
have  no  objections  to  placing  his  name  in  the  jury-box. 
It  is  true,  however,  that  the  number  is  very  limited, 
owing  to  the  fact  that  very  few  Negroes  will  come  to  the 
standard  as  far  as  the  above  qualifications  are  concerned. 
Out  of  the  300  names  in  the  jury-box  from  which  we  draw 
our  juries,  there  are  about  a  dozen  Negroes.  The  Negroes 

258 


AS   JUROR 

as  jurors  do  not  give  any  trouble;  they  always  follow  the 
suggestions  and  advice  of  the  white  jurors." 

Parish  No.  3,  11,000  white  people,  17,800  Negroes: 
".  .  .  in  this  parish  Negroes  have  served  on  both  our 
grand  and  petit  juries  ever  since  the  Civil  "War.  Only  the 
very  best  of  our  Negroes  are  drawn  on  the  jury;  they 
usually  constitute  about  one-half  of  the  panel  on  the  petit 
jury  and  on  the  grand  jury  they  are  always  represented, 
but  in  a  much  smaller  proportion.  The  number  of  Negroes 
with  us  fit  for  jury  service  is  not  increasing  as  one  would 
think  would  be  the  case  considering  their  advantage  for  an 
education.  They  render  very  good  service,  rather  prone  to 
convict  in  serious  personal  injury  cases,  inflict  capital  pun- 
ishment more  readily  than  white  juries  and  generally  want 
all  law  enforced,  especially  against  bad  men  of  their  own 
race,  as  they  know  this  is  their  best  protection." 

Parish  No.  4,  2,000  white  people,  13,700  Negroes: 
".  .  .  we  have  had  one  Negro  on  the  petit  jury  the  last 
criminal  term  of  court  in  a  murder  case  of  another 
Negro.  He  is  the  only  Negro  that  has  sat  on  the  jury  for 
two  or  three  years  in  our  parish.  We  do  not  allow  any 
Negroes  to  sit  on  the  grand  jury  in  our  parish.  There  are 
three  names  of  Negroes  in  the  jury-box  that  we  draw  our 
general  venire  from,  as  well  as  I  remember,  possibly  one  or 
two  more,  but  not  more  than  that  number,  as  well  as  I 
remember.  We  used  to  have  as  many  Negroes  as  white 
jurors  here  ten  or  twelve  years  ago." 

Mississippi. — County  No.  1,  4,000  white  people,  31,- 
000  Negroes:  ".  .  .  Negroes  do  serve  on  juries  in  our 
circuit  courts,  also  in  our  magistrate's  court.  As  to  the 
extent  Negro  jurors  serve  Negro  jurors  are  decreasing  in 

259 


,  NEGRO   IN   COURT   ROOM 

late  years.  It  requires  certain  qualifications  to  make  them 
competent  under  the  Constitution  of  the  State  of  Missis- 
sippi, to- wit:  Every  male  inhabitant  of  the  State,  except 
idiots,  insane  persons,  and  Indians  not  taxed,  who  is  a  citi- 
zen of  the  United ,  States,  twenty-one  years  old  and  up- 
wards, who  resided  in  the  State  two  years,  and  one  year 
in  the  election  district,  or  in  the  incorporated  city  or  town 
in  which  he  offers  to  vote,  and  who  is  duly  registered,  and 
has  never  been  convicted  of  bribery,  burglary,  theft,  arson, 
obtaining  money  or  goods  under  false  pretenses,  perjury, 
forgery,  embezzlement  or  bigamy,  and  who  has  paid,  on  or 
before  the  first  day  of  February  of  the  year  in  which  he 
shall  offer  to  vote,  all  taxes  which  have  been  legally  re- 
quired of  him,  and  is  able  to  read  any  section  of  the  Con- 
stitution of  the  State,  or  is  able  to  understand  the  same, 
when  read  to  him,  is  a  qualified  voter,  and  can  be  a  mem- 
ber of  either  our  grand  jury  or  a  petit  jury  if  drawn  as 
such.  Our  Negro  jurors  are  either  ministers  or  school 
teachers,  with  some  farmers.  The  majority  of  them  fail 
to  pay  their  taxes,  which  disqualifies  them  from  jury  serv- 
ice. Negro  jurors  are  not  regarded  by  our  courts  as  good 
jurymen,  but  we  are  compelled  to  use  them  when  drawn 
and  they  are  qualified  to  serve." 

County  No.  2,  8,000  white  people,  11,700  Negroes: 
".  .  .  Negroes  sitting  on  jury  and  paying  poll-tax  is  a 
thing  of  the  past  in  my  county.  Only  about  25  or  30 
[are]  registered.  Disfranchised  on  educational  qualifica- 
tion." 

County  No.  3,  3,000  white  people,  23,000  Negroes: 
"  In  my  judicial  district  there  are  five  counties,  in  three  of 
which  Negroes  serve  upon  the  juries  in  about  the  propor- 

260 


AS   JUROR 

tion  that  they  are  qualified  under  the  law.  The  qualifica- 
tions for  jurors  are  very  strict  in  this  State  and  compara- 
tively few  Negroes  can  qualify  legally.  In  limited  num- 
bers they  make  very  satisfactory  jurors  when  the  rights  of 
their  people  are  involved.  '  As  a  rule,  a  Negro  does  not 
like  to  try  a  white  man's  case;  they  are  much  more  inclined 
to  convict  Negroes  charged  with  crime  than  are  the  white 
jurors,  and  Negro  defendants  always  challenge  Negro 
jurors.  In  the  '  Black  Belt '  of  Mississippi,  a  Negro  can 
always  receive  a  fair  trial  in  the  courts,  but  this  is  not  so 
certain  in  the  white  counties.  In  the  two  counties  where 
Negroes  do  not  serve  upon  the  juries,  there  are  practically 
no  Negroes  qualified  under  the  law,  because  none  are  reg- 
istered voters." 

County  No.  4,  6,000  white  people,  18,000  Negroes: 
"We  don't  have  any  Negro  jurors  at  all  in  this  county. 
We  have  very  few  registered  Negroes  in  the  county." 

County  No.  5,  7,000  white  people,  7,000  Negroes: 
".  .  .  Negroes  do  sit  on  juries  in  this  county  at  times. 
They  have  a  right  to  serve  as  jurors  when  they  have  duly 
registered  and  paid  their  tax  and  some  other  qualifica- 
tions. .  .  .  But  the  Board  of  Supervisors  draws  the  names 
of  200  or  more  persons  on  the  first  Monday  of  January 
in  each  year  and  puts  them  in  a  box,  so  many  for  each 
supervisor's  district.  But  of  late  years  the  supervisors 
have  not  put  many  names  of  Negroes  in  the  jury-box; 
therefore,  we  have  not  had  very  [many]  Negro  jurors. 
But  we  have  one  or  two  Negro  jurors  nearly  every  term 
of  our  court  [circuit  court].  .  .  ." 

County  No.  6,  8,000  white  people,  28,700  Negroes: 
"  The  jury  law  in  this  State  makes  no  discrimination  on 

261 


NEGRO   IN   COURT   ROOM 

account  of  race,  color,  or  previous  condition  of  servitude, 
and  no  man  is  excluded  from  the  jury  on  account  of  his 
color.  ...  In  some  of  the  counties  of  the  State,  the 
boards  of  supervisors  select  some  Negroes  for  jury  service, 
but  the  great  trouble  is,  there  are  comparatively  few 
Negroes  in  any  county,  and  none  in  some  of  the  coun- 
ties, who  can  measure  up  to  the  qualifications  prescribed 
by  law.  .  .  .  The  criminal  element  in  Mississippi  is  com- 
posed largely  of  the  Negro  race,  and  as  a  matter  of 
fact,  the  persons  of  that  race  charged  with  crime  and  the 
lawyers  who  defend  them,  the  large  majority  of  whom  are 
of  the  white  race,  do  not  want  Negroes  on  the  jury,  and 
Negroes  are  almost  invariably  challenged.  If  Negroes 
chance  to  be  summoned  on  a  special  venire  in  a  capital 
case  with  white  men,  they  [the  Negroes]  disqualify  to 
avoid  service,  sometimes  by  claiming  that  they  are  not 
registered  voters,  but  generally  by  claiming  that  they  are 
opposed  to  the  death  penalty. 

"  The  following  incident  happened  in  one  of  our  courts 
and  may  help  to  shed  some  light  on  the  subject-matter 
wanted :  A  Negro  was  indicted  for  manslaughter.  He  was 
too  poor  to  employ  counsel  to  conduct  his  case,  and  it  not 
being  a  capital  case,  the  court  could  not  appoint  counsel 
for  him,  and  told  him  so.  He  said  he  would  do  the  best 
he  could  without  a  lawyer,  and  the  court  told  him  of  his 
rights  under  the  law,  that  he  could  look  over  the  jury,  and 
of  his  right  to  challenge  four  of  them  if  he  was  dissatisfied 
with  the  panel  as  it  stood.  There  were  four  Negroes  on 
the  jury,  and  he  very  promptly  advised  the  court  that  he 
was  not  satisfied;  the  court  told  him  he  had  a  right  to 
object  to  four  of  them,  and  he  very  quickly  told  the  court, 

262 


AS   JUROR 

'  Ef  dat  is  so,  dem  niggers  can  stand  aside.'  They  were 
excused  by  the  court,  and  the  sheriff  was  ordered  to  com- 
plete the  panel  from  the  very  best  citizens  to  be  had, 
which  was  done,  the  jury  being,  when  complete,  all  white 
men.  The  defendant  addressed  the  jury  in  his  own  de- 
fence and  was  acquitted. 

"In  my  county  ...  we  have  had  no  Negroes  on  the 
jury  for  the  past  15  years  or  more.  We  have  some  30,000 
colored  population  in  this  county,  .  .  .  and  we  have  only 
about  175  registered  in  the  county.  The  board  of  super- 
visors, as  a  rule,  does  not  place  their  names  in  the  box, 
for  the  reason  that,  as  above  stated,  they  will  not  serve  if 
any  way  out  of  it  can  be  found." 

County  No.  7,  1,000  white  people,  4,000  Negroes: 
".  .  .  we  have  no  Negro  jurors  in  this  county  at  all." 

County  No.  8,  8,000  white  people,  12,000  Negroes: 
"There  are  only  400  white  qualified  electors  in  this 
county,  only  about  30  qualified  Negro  electors.  We  never 
have  a  term  of  court  without  having  several  Negroes  on 
it,  besides  we  always  have  Negroes  on  the  trial  juries. 
It  is  not  often  that  they  sit  on  a  case  unless  a  Negro  law- 
yer has  one  side  of  it.  They  do  not  believe  in  convicting 
one  of  their  color.  They  are  objectionable  in  every  sense 
of  the  word.  They  are  not  regarded  by  the  other  mem- 
bers of  the  jury.  Negro  jurors  are  on  the  increase  in  re- 
cent years.  .  .  ." 

County  No.  9,  4,000  white  people,  12,000  Negroes: 
"  No  Negroes  have  served  on  jury  in  this  county  since 
Republican  party." 

Missouri. — County  No.  1,  24,000  white  people,  4,500 
Negroes:  ".  .  .  As  far  as  I  am  informed,  and  certainly 

263 


NEGRO   IN   COURT   ROOM 

since  I  have  been  connected  with  the  court  here,  no  Ne- 
groes have  served  as  jurors  either  in  our  court  or  in  any 
justice  of  the  peace  court  in  this  county.  While  probably 
under  our  laws  Negroes  would  be  legal  jurors,  the  county 
court  of  this  county  will  not  draw  them  as  jurors,  and 
the  Sheriff,  when  he  has  to  get  jurors,  will  not  sum- 
mon them.  And  I  do  not  believe  our  lawyers  here  would 
permit  a  Negro  to  remain  on  a  jury  before  which  they 
would  have  to  try  a  case.  Further,  I  am  sure  that  no 
white  man  here  would  serve  on  a  jury  with  a  Negro,  even 
though  his  refusal  to  so  serve  would  subject  him  to  a 
jail  sentence.  .  .  ." 

County  No.  2,  21,000  white  people,  4,000  Negroes: 
".  .  .  we  have  never  known  of  a  Negro  juror  in  ... 
county." 

County  No.  3,  28,000  white  people,  4,700  Negroes: 
"  Negroes  never  have  this  burden  heaped  upon  them  in  this 
State." 

County  No.  4,  540,000  white  people,  35,500  Negroes: 
"  We  do  not  have  many  Negro  jurors.  I  have  occupied 
this  post  but  six  months,  and  in  that  time  we  have  had  but 
two  Negroes  called  for  service.  Our  jury  canvass  is  made 
biennially.  All  names  placed  in  the  wheel  are  taken  just 
as  drawn  from  the  same  on  orders  from  the  various  divi- 
sions of  court.  A  few  of  the  more  intelligent  Negroes  are 
placed  on  the  jury  list.  I  made  inquiry  when  two  Negroes 
served  on  a  jury  last  week.  The  other  jurors  did  not  seem 
to  feel  any  antipathy.  Of  course,  a  little  surprise  was 
manifested  at  seeing  them  in  court  when  their  names  were 
called.  Neither  the  attorneys  for  the  plaintiff  nor  [for] 
the  defence  challenged  them  but  accepted  them  on  the 

264 


AS   JUROR 

jury.  My  predecessors  never  placed  many  of  the  Negroes' 
names  in  the  wheel  as  I  understand  from  them."  This 
letter  was  from  the  jury  commissioner,  not  the  clerk  of 
the  court. 

North  Carolina. — County  No.  1,  6,800  white  people, 
8,000  Negroes:  ".  .  .  of  late  years  very  few  Negroes 
serve  on  the  juries  in  this  county  for  the  reasons  that  they 
are  an  illiterate  race  and  moral  character  not  what  it 
should  be.  Further,  he  is  easily  influenced,  deciding  with 
a  juror  whom  he  may  like  instead  of  weighing  the  evi- 
dence and  deciding  accordingly.  The  number  of  Negro 
jurors  has  decreased  for  the  past  few  years  on  account  of 
the  Negro  of  to-day  [being]  morally  not  as  good  as  the 
Negro  of  several  years  ago." 

County  No.  2,  11,000  white  people,  19,000  Negroes:  "  I 
will  say  that  Negroes  do  not  serve  on  the  jury  in  this 
county  and  have  not  since  we,  the  white  people,  got  the 
government  in  our  hands.  When  the  Eepublican  party 
was  in  power  Negroes  were  drawn,  both  regular  and  talis 
jurors,  and  not  one  out  of  one  hundred  was  a  competent 
juror,  but,  strange  to  say,  when  a  Negro  was  on  trial,  he 
would  always  prefer  the  white  men  to  try  his  case." 

County  No.  3,  5,800  white  people,  8,300  Negroes : 
"  Negroes  occasionally  serve  on  juries  in  ...  county, 
but  not  to  as  great  extent  as  they  did  before  the  passage 
of  the  Amendment  [the  suffrage  amendment  in  1900]. 
The  County  Commissioners  have  been  more  particular 
about  the  names  that  are  left  in  the  box  from  which  jurors 
are  drawn.  Only  the  best,  most  reliable  and  most  intelli- 
gent Negroes  are  left  in  the  box.  Sometimes  it  happens 
that  a  few  are  called  as  talismen,  but  not  then  until  the 

365 


NEGRO   IN   COURT   ROOM 

sheriff  has  exhausted  his  best  efforts  to  get  white  men. 
Those  called  are  very  apt  to  be  good,  reliable  men,  and 
with  a  majority  of  white  men  in  the  jury-box  are  not  dis- 
posed or  able  to  do  wrong.  My  experience  as  clerk  for  20 
years  is  that  they  make  good  jurors,  and  are  apt  to  be 
disposed,  in  criminal  actions,  to  execute  the  law  even 
against  their  own  race.  Judge  .  .  .  says  that  white  men 
on  the  jury  are  everywhere  disposed  to  lean  toward  a 
Negro  litigant,  especially  if  the  Negro  is  of  the  old-class, 
before-the-war  Negro  gentleman  and  the  white  man  is  of 
these  later  days  '  common  trash.'  I  am  told  by  the  judges 
that  in  some  counties  the  sheriffs  would  not  dare  to  call  a 
Negro  as  a  talisman  even,  but,  as  I  have  said,  we  have 
them  not  very  frequently  and  without  complaint.  I  no- 
tice that  the  opposing  lawyers  are  slow  in  challenging  them 
when  so  called.  .  .  ." 

County  No.  4,  12,600  white  people,  13,100  Negroes: 
".  .  .  Negroes  do  not  serve  on  juries  in  our  County,  nor 
are  they  allowed  to  vote  or  take  any  part  in  county  or 
municipal  affairs.  .  .  ." 

County  No.  5,  5,700  white  people,  6,700  Negroes :  "  A 
colored  man  has  never  served  on  the  jury  in  this  county, 
neither  has  a  colored  man  ever  voted  in  this  county." 

County  No.  6,  6,000  white  people,  13,000  Negroes: 
".  .  .  We  still  have  some  Negro  jurors  at  every  term  of  our 
courts,  but  not  near  so  many  as  in  former  years.  Our 
County  Commissioners  .  .  .  are  very  careful  in  putting 
the  names  of  only  good,  respectable  Negroes  in  the  jury 
box.  The  consequence  is  we  have  very  few  Negroes  on 
our  juries,  but  those  we  have  are  well  disposed  and  the 
most  intelligent  Negroes  of  the  county,  and  make  very 

266 


AS   JUROR 

acceptable  jurors.  I  have  been  struck  with  the  fact  that 
our  lawyers  in  selecting  the  jury  for  both  criminal  and 
civil  cases,  seldom  ever  object  to  the  Negroes  who  are  on 
the  regular  panel.  If  this  is  always  kept  up,  with  only 
the  best  and  most  intelligent  Negroes  in  the  county  in 
the  jury-box,  all  will  be  well  and  our  people  will  not  ob- 
ject. But  in  former  years,  when  sometimes  the  majority 
of  the  jury  would  be  Negroes,  there  was  great  dissat- 
isfaction." 

Oklahoma. — County  No.  1,  15,000  white  people,  2,400 
Negroes :  "  Negroes  have  served  on  both  grand  and  petit 
juries  nearly  every  term  of  court  with  the  exception  of  the 
last  two  terms  of  the  district  court.  There  are  some  Negro 
names  in  the  box,  but  they  did  not  happen  to  be  drawn  by 
the  Sheriff  or  myself.  The  men  who  have  sat  have  given 
satisfaction  to  the  litigants,  but  have  been  objectionable  to 
the  other  jurors.  Where  it  has  come  to  a  locked-up  jury, 
and  where  they  have  to  eat  and  be  closely  confined  with 
the  white  man,  I  have  heard  some  complaint.  The  court 
and  officials  who  are  all  white  Republicans — except  the 
sheriff — treat  Negroes  with  utmost  fairness." 

South  Carolina. — County  No.  1,  9,000  white  people, 
19,000  Negroes:  "...  I  have  only  been  in  office  for  [the] 
last  four  years,  but  since  I  have  been  in  office  I  have 
had  a  good  many  Negroes  on  juries.  Year  before  last  I 
had  Negroes  on  juries  three  consecutive  courts,  and  every 
year  I  have  several  of  them.  We  always  put  the  names 
of  those  qualified  to  act  in  our  jury-box,  but  it  is  a  bad 
condition  of  affairs  when  you  go  over  the  Negroes  of  the 
county,  and  find  how  few  are  qualified  to  act.  The  Negro 
jurors  have  increased  in  our  section." 

267 


NEGRO   IN    COURT    ROOM 

County  No.  2,  5,000  white  people,  17,000  Negroes: 
".  .  .  The  number  of  Negro  jurors  has  decreased  in  late 
years.  I  do  not  think  that  a  great  number  of  Negro 
jurors  would  impress  very  favorably  the  court  and  the 
people  at  large." 

County  No.  3,  10,000  white  people,  19,000  Negroes: 
"...  I  do  not  remember  ever  to  have  seen  a  Negro  on 
the  jury  in  this  county.  I  am  told,  however,  that  one 
served  occasionally  for  only  awhile  after  1876." 

County  No.  4,  18,000  white  people,  41,000  Negroes: 
"  In  my  experience  covering  ten  years  or  more,  I  find  it 
difficult  to  get  a  large  array  of  competent  jurors.  We  are 
careful  and  painstaking  in  making  our  lists;  therefore, 
we  never  allow  a  Negro  to  serve  for  the  reason  of  the  gen- 
eral moral  unfitness,  and  general  depravity." 

County  No.  6,  20,000  white  people,  22,000  Negroes: 
"  No  Negroes  serve  on  the  jury  in  the  county  courts  in 
this  county." 

Tennessee. — No  information  about  Negro  jury  service 
in  Tennessee  has  been  obtainable. 

Texas. — County.  No.  1,  6,300  white  people,  7,800 
Negroes :  ".  .  .  As  to  Negro  jurors  ...  as  a  rule,  in  the 
County  Court  about  one-tenth  are  Negroes,  and  they  are 
rarely  ever  discriminated  against.  I  do  not  recall  a  case 
where  they  have  been  rejected  on  account  of  race  or  color 
by  white  men.  As  a  rule,  they  are  not  so  acceptable  to 
Negro  litigants  as  they  are  to  those  of  the  other  races. 
There  are  a  larger  per  cent,  of  Negroes  in  the  district 
court,  and  there  is  rarely  any  criticism.  In  fact,  no  preju- 
dice exists  here  against  them  as  jurors,  largely  from  the 
fact  that  only  our  best  Negro  citizens  are  drawn  on  the 

268 


AS  JUROR 

juries.  ...  I  think  the  per  cent,  of  Negro  jurors  has 
increased.  They  are  simply  accepted  or  struck  off  as  any 
other  citizen.  I  believe  more  are  accepted  by  white  than 
colored  litigants.  They  have  served  on  some  of  our  very 
important  cases.  .  .  ." 

County  No.  2,  14,000  white  people,  9,000  Negroes: 
"  We  haven't  had  any  Negroes  on  the  jury  in  ...  county 
for  seyeral  years.  They  used  to  have  a  few  on  the  jury 
several  years  ago,  so  I  have  been  informed,  but  none  in  the 
last  few  years." 

County  No.  3,  21,000  white  people,  16,000  Negroes: 
"  We  do  not  use  Negro  jurors  in  our  State  or  county  courts 
at  all." 

County  No.  4,  7,000  white  people,  8,000  Negroes: 
".  .  .  It  has  been  the  rule  of  ...  county  to  have  Negroes 
on  the  grand  and  petit  juries.  They  have  given  satisfac- 
tion. The  colored  jurors  are  represented  by  about  25 
per  cent,  of  the  jurors." 

The  cases  quoted  from  in  the  earlier  part  of  this 
chapter  show  even  better  than  these  letters  the  attitude 
of  Texas  toward  Negro  jurors. 

Virginia. — County  No.  1,  6,700  white  people,  8,500 
Negroes:  "No  Negro  juror  in  this  court  for  ten  years, 
and  I  don't  think  that  there  will  ever  be.  .  .  ." 

County  No.  2,  3,900  white  people,  5,500  Negroes: 
".  .  .  from  reconstruction  days  up  to  ten  or  twelve  years 
ago  a  few  Negroes  served  on  the  jury  of  this  county.  My 
impression  is  ...  that  they  made  very  little  impression 
in  the  jury,  and  they  were  completely  dominated  by  white 
men  in  said  bodies,  who  were,  of  course,  greatly  in  the 
majority.  At  this  time  no  Negro  jurors  are  drawn  at  all." 

269 


NEGRO   IN   COURT   ROOM 

County  No.  3,  3,000  white  people,  6,000  Negroes: 
".  .  .  there  are  no  Negroes  on  our  jury  list.  On  several 
occasions  when  we  had  to  make  up  a  jury  we  have  put 
a  few  on.  The  impression  is  here  that  it  does  not  do  to 
mix  the  races  even  in  the  jury-box." 

County  No.  4,  17,900  white  people,  19,200  Negroes: 
"  Negroes  under  our  Constitution  are  not  debarred  from 
serving  as  jurors  in  Virginia,  but  owing  to  the  nature  and 
disposition  of  the  Negro  to  follow  and  not  lead,  we  seldom 
place  them  on  trial  juries.  The  number  of  colored  jurors 
has  decreased  in  the  last  ten  years." 

County  No.  5,  3,200  white  people,  4,900  Negroes: 
"  Negroes  have  for  a  number  of  years  been  serving  on 
the  juries  in  this  county,  and,  as  far  as  I  have  been  able 
to  learn,  have  generally  given  satisfactory  service.  .  .  . 
There  is  hardly  ever  a  jury  drawn  without  some  Negroes 
being  on  it.  Of  course,  the  judge  selects  those  Negroes 
who  are  best  qualified  for  the  service.  .  .  .  Naturally,  the 
number  of  Negro  jurors  is  not  near  so  large  as  that  of  the 
whites,  for  the  reason  .  .  .  that  all  jurors  are  selected 
with  reference  to  their  qualifications." 

County  No.  6,  4,000  white  people,  4,800  Negroes: 
".  .  .  we  never  have  any  Negroes  on  juries  in  my  county. 
Haven't  had  any  for  about  fifteen  years.  .  .  ." 

County  No.  7,  10,000  white  people,  13,000  Negroes: 
".  .  .  Negroes  do  not  serve  on  juries  in  this  county,  and 
it  has  been  about  twenty  years  since  they  did  jury  service 
here." 

County  No.  8,  2,300  white  people,  4,400  Negroes: 
"  Since  the  adoption  of  the  new  Constitution  for  this 
State  .  .  .  Negroes  no  longer  serve  as  jurors  in  this  coun- 

270 


AS    JUROR 

ty.  Prior  to  that  time  they  appeared  regularly  in  our 
courts,  and  made  good  jurors  in  the  civil  as  well  as  crim- 
inal business.  Of  course,  in  selecting  them,  only  the  best 
of  their  race  were  chosen.  And  I  can't  recall  an  instance, 
with  an  experience  of  sixteen  years  as  clerk  of  the  courts, 
that  any  objection  was  ever  raised  against  them  as  jurors." 

County  No.  9,  5,500  white  people,  5,600  Negroes: 
"  We  don't  have  colored  men  on  jury  in  this  county." 

County  No.  10,  9,000  white  people,  13,600  Negroes: 
"  Negroes  are  not  allowed  to  serve  on  juries  in  this 
county." 

County  No.  11,  1,100  white  people,  3,700  Negroes: 
"  We  have  not  had  any  Negroes  to  serve  on  the  jury  in 
this  county  for  twelve  or  fifteen  years,  and  when  they  did, 
they  gave  very  poor  satisfaction." 

Summary:  With  such  incomplete  statistics,  conclu- 
sions as  to  the  actual  service  of  the  Negro  as  a  juror  can 
hardly  be  more  than  guesses.  Some  of  the  clerks  of  court 
say  that  the  number  of  Negro  jurors  in  their  counties  is 
increasing;  others,  that  it  is  decreasing.  Some  say  that 
race  does  not  come  into  the  consideration  of  fitness  for 
jury  service;  others,  that  Negroes  are  not  allowed  on  ju- 
ries at  all.  Some  say  that  Negro  jurors  have  given  satis- 
faction; others,  that  they  have  been  scarcely  more  than 
figureheads  following  the  lead  of  white  jurors.  Several 
of  the  clerks  think  that  Negro  litigants  are  reluctant  to 
have  Negro  jurors  sit  on  their  cases.  Some  feel  that 
Negro  jurors  are  more  prone  to  convict  than  white  jurors 
are.  It  is  undoubtedly  true  that  there  are  not  as  many 
Negroes  qualified  for  jury  service  under  the  laws  of  the 
Southern  States  as  there  were  twenty-five  years  ago,  say. 

271 


NEGRO    IN    COURT    ROOM 

Usually  one  must  be  an  elector  to  be  qualified  for  jury 
service.  The  great  majority  of  the  Negroes  have  been  un- 
able to  satisfy  the  suffrage  tests  and  have  been  disfranchised. 
They  are,  consequently,  not  electors  and  not  eligible  to 
serve  as  jurors.  Hence,  if  the  selection  of  jurors  is  con- 
ducted with  absolute  impartiality,  there  will  be  com- 
paratively few  Negroes  retained. 


SEPARATE    COURTS 

South  Carolina  appears  to  be  the  only  State  which 
has  ever  provided  a  separate  court  for  the  trial  of  cases  in 
which  Negroes  have  interests  at  issue.  That  was  called 
the  District  Court,  provided  for  by  a  statute  60  approved 
December  19,  1865,  which  statute  was  repealed  Septem- 
ber 21,  1866;  so  the  law  was  in  force  less  than  a  year. 
The  seventh  section  of  the  act  of  forty-nine  sections  is: 
"  The  District  Court  shall  have  exclusive  jurisdiction,  sub- 
ject to  appeal,  of  all  civil  cases  where  one  or  both  of  the 
parties  are  persons  of  color,  and  of  all  criminal  cases 
wherein  the  accused  is  a  person  of  color,  and  also  of  all 
cases  of  misdemeanor  affecting  the  person  or  property 
of  a  person  of  color,  and  of  all  cases  of  bastardy,  and  of 
all  cases  of  vagranc}7,  not  tried  before  a  Magistrate.  .  .  ." 
The  Magistrate  was  given  jurisdiction  over  small  disputes, 
controversies  and  complaints  that  arose  in  his  neighbor- 
hood between  persons  of  color,  or  between  persons  of  color 
and  white  persons,  and  of  petty  misdemeanors  committed 
by  or  toward  persons  of  color,  between  master  and  servant, 
between  master  and  apprentice,  and  between  employer  and 
laborer,  and  civil  suits  involving  not  over  twenty  dollars 

273 


DIFFERENT    PUNISHMENTS 

in  which  a  person  of  color  was  a  party.  An  indictment 
of  a  white  person  for  the  homicide  of  a  person  of  color 
had  to  be  tried  in  the  regular  superior  court;  and  so  had 
all  other  indictments  in  which  a  white  person  was  accused 
of  a  capital  felony  affecting  the  person  or  property  of  a 
person  of  color.  In  these  forty-nine  sections  the  juris- 
diction of  this  special  court  for  persons  of  color  is  worked 
out  in  detail;  but  inasmuch  as  the  law  was  in  force  less 
than  a  year  and  was  one  of  the  ephemeral  "  Black  Laws  " 
already  considered,  there  is  no  need  to  go  into  it  further. 
Suffice  it  to  say  that  in  the  South  at  present,  as  in  other 
sections,  the  people  of  all  races  and  colors  have  their  rights 
adjudicated  by  the  same  court. 


DIFFERENT   PUNISHMENTS 

Alabama,  Florida,  and  Georgia  prescribe  a  heavier  pun- 
ishment for  fornication  and  adultery  between  white  peo- 
ple and  Negroes  than  between  members  of  the  same  race. 
On  first  consideration  this  appears  to  be  a  case  of  different 
punishment.  As  was  said  by  the  Supreme  Court  of  Ala- 
bama 61 :  "  The  fact  that  a  different  punishment  is  affixed 
to  the  offence  of  adultery  when  committed  between  a  Ne- 
gro and  a  white  person,  .and  when  committed  between  two 
white  persons  or  two  Negroes,  does  not  constitute  a  dis- 
crimination against  or  in  favor  of  either  race.  The 
discrimination  is  not  directed  against  the  person  of  any 
particular  color  or  race,  but  against  the  offence,  the  na- 
ture of  which  is  determined  by  the  opposite  colors  of  the 
cohabiting  parties.  The  punishment  of  each  offending 
party,  white  and  black,  is  precisely  the  same."  The  con- 
19  273 


NEGRO    IN    COURT    ROOM 

stitutionality  of  these  statutes  as  to  cohabitation  between 
persons  of  different  races  has  been  upheld  by  the  Supreme 
Court  of  the  United  States.62 

The  following  are  instances  of  race  distinction  in  the 
matter  of  offences  and  punishment.  South  Carolina,63  in 
1865,  said  that  a  person  of  color  who  committed  assault 
upon  a  white  woman  with  intent  to  ravish  her,  or  who  had 
sexual  intercourse  with  a  white  woman  by  impersonating 
her  husband,  should  be  guilty  of  a  felony  "  without  benefit 
of  clergy."  Florida  64  made  it  a  capital  crime  to  assault 
a  white  female  with  intent  to  commit  rape  or  to  be  acces- 
sory thereto.  Kentucky  65  provided  that  all  persons,  with- 
out distinction  of  color,  would  be  subject  to  the  same 
pains  and  penalties  for  felonies  and  misdemeanors,  add- 
ing: "The  laws  now  in  force  for  the  punishment  of  Ne- 
groes and  mulattoes  for  rape  on  white  women  are  hereby 
continued  in  force."  This  was  amended66  in  1869,  but 
the  offence  was  still  against  white  women.  The  race  dis- 
tinction in  these  statutes  lies  in  the  fact  that  heavy 
punishment  was  prescribed  for  an  assault  upon  a  white 
woman,  but  no  such  protection  was  accorded  a  Negro 
woman. 

South  Carolina  made  it  a  felony  "  with  benefit  of 
clergy  "  for  a  servant  to  steal  a  chattel,  money,  or  valuable 
security  to  the  value  of  ten  dollars  belonging  to,  or  in  the 
possession  or  power  of  his  master  or  employer.  It  was  an 
"  aggravated  misdemeanor "  for  a  servant  to  steal  such 
property  below  the  value  of  five  dollars.  The  servant  had 
no  right  to  sell  any  farm  produce  without  the  written  evi- 
dence from  his  master  or  the  District  Judge  or  Magistrate 
that  he  had  a  right  to  do  so.  But  all  such  race  distinc- 

274: 


DIFFERENT    PUNISHMENTS 

tions  in  the  matter  of  punishment  passed  away,  as  did  the 
other  "  Black  Laws/'  in  1866. 

There  are  certain  statutes  as  to  crimes  which,  though 
they  do  not  mention  the  Negro  in  so  many  words,  are 
thought  by  many  to  have  peculiar  application  to  him. 
The  vagrancy  laws  of  the  Southern  States,  for  instance, 
have  been  considered  as  directed  primarily  against  Ne- 
groes. Some  of  the  States  made  it  a  crime  for  one  to  sell 
cotton  in  bags  between  certain  hours  of  the  night.  This 
was  probably  a  result  of  the  habit  attributed  to  the  Negro 
of  hiding  cotton  in  the  jambs  of  the  fences  and  woods  in 
the  daytime  to  take  to  the  cross-roads  store  at  night.  Mis- 
souri,67 in  1903,  made  chicken-stealing  a  felony  punishable 
by  imprisonment  for  five  years,  or  a  fine  of  two  hundred 
dollars.  The  next  year,  Kentucky  88  passed  the  following 
statute :  "  That  if  any  person  shall  steal  chickens,  tur- 
keys, ducks,  or  other  fowls  of  the  value  of  two  dollars,  or 
more,  he  shall  be  confined  in  the  penitentiary  not  less 
than  one  nor  more  than  five  years.  Whether  this  is  an 
indirect  race  distinction  or  not,  the  writer  will  not  take 
it  upon  himself  to  decide. 

Some  of  the  States  have  enacted  statutes  to  the  effect 
that  the  punishment  for  the  members  of  all  races  shall  be 
the  same  for  the  same  offence.  Delaware 69  did  so  in 
1867.  In  Mississippi,70  in  1865,  Negroes  were  given  the 
right  to  procure  the  arrest  of  a  white  person ;  but,  .if  the 
arrest  were  false  and  malicious,  the  Negro  must  pay  all 
the  costs,  be  fined  not  over  fifty  dollars,  and  impris- 
oned not  over  twenty  days.  In  1867,  however,  a  statute 
said  that  Negroes  must  have  the  same  punishment  as 
white  people.  South  Carolina,71  as  has  been  seen,  re- 

275 


NEGRO   IN    COURT    ROOM 

pealed  all  laws  prescribing  different  punishment  for 
Negroes. 

The  following  interesting  bit  of  news  is  taken  from  an 
Associated  Press  report  of  July  21,  1909:  "  Mobile,  Ala. — 
The  commissioners  to-day  established  a  curfew  law  for  Ne- 
groes. Commencing  to-night,  all  the  blacks  must  be  at 
home  or  in  bed  at  10  P.M.  Any  of  them  caught  wandering 
at  large  will  be  locked  up.  This  action  is  due  to  an 
epidemic  of  hold-ups  perpetrated  by  Negroes." 

A  recent  instance  of  race  distinction  in  the  court 
room  seems  to  come  from  New  York.  A  Pullman  porter, 
named  Griffin,  was  arrested  in  Montreal,  charged  with 
stealing  a  pocket-book,  but  the  charge  was  not  substanti- 
ated and  he  was  released.  He  thereupon  brought  suit 
against  Daniel  F.  Brady,  who  caused  his  arrest,  and  ob- 
tained a  verdict  for  two  thousand  five  hundred  dollars  in 
damages.  The  Supreme  Court  of  New  York  reduced  the 
damages  from  two  thousand  five  hundred  dollars  to  three 
hundred  dollars.  Upon  an  appeal  by  Griffin,  the  appellate 
division  of  the  Supreme  Court  sustained  the  order  reduc- 
ing the  damages.  The  following  is  a  part  of  the  opinion 
of  Judge  Drugo  of  the  Supreme  Court 72  whose  order  was 
sustained :  "  You  cannot  say  that  he  [Griffin]  is  just  the 
same  as  a  white  man,  when  you  come  to  say  how  much 
his  name  will  suffer.  He  might  suffer  more.  But,  after 
all,  what  are  the  probabilities  about  it?  Is  it  likely  that 
when  a  colored  man  is  arrested  and  imprisoned  he  feels 
just  as  much  shame  as  a  white  man  of  any  circumstance 
might  ? 

"  I  think  if  you  were  to  take  the  Mayor  of  the  city  and 
arrest  him  he  would  feel  very  much  more  humiliated  than 

276 


NOTES 

this  porter,  from  the  fact  that  he  was  the  Mayor  and  not 
a  colored  man,  for  if  a  colored  man  he  might  not  feel 
quite  as  much  humiliation  and  shame. 

"  In  one  sense  a  colored  man  is  just  as  good  as  a  white 
man,  for  the  law  says  he  is,  but  he  has  not  the  same  amount 
of  injury  under  all  circumstances  that  a  white  man  would 
have.  Maybe  in  a  colored  community  down  South,  where 
white  men  were  held  in  great  disfavor,  he  might  be  more 
injured,  but  after  all  that  is  not  this  sort  of  a  community. 
In  this  sort  of  a  community,  I  dare  say  the  amount  of 
evil  that  would  flow  to  the  colored  man  would  not  be  as 
great  as  it  probably  would  be  to  a  white  man." 


NOTES 

1  Laws  of  la.,  1870,  p.  21. 

2  Laws  of  Colo.,  1897,  p.  115. 

3  Laws  of  Md.,  1872,  p.  134,  p.  134 ;  1876,  p.  469. 

4  In  re  Taylor,  1877,  48  Md.  28,  at  p.  33. 

5  Bradwell  v.  State,  1872,  16  Wall.  130  at  p.  142. 

6  U.  S.  v.  Rhodes,  1866,  Fed.  Case  No.  16,151. 

7  Laws  of  Ala.,  1865-66,  p.  98. 

8  Hid.,  1866-67,  p.  435. 

9  Dolan  v.  State,  1886,  81  Ala.  11,  at  p.  17. 

10  Kelly  v.  State,  1869,  25  Ark.  392. 

11  Art.  XIV,  sec.  2. 

12  Laws  of  Fla.,  1865,  pp.  35-36. 

13  Art.  II,  sec.  5,  par.  4. 

14  Laws  of  Ky.,  1865-66,  pp.  38-39. 

15  Bowlin  v.  Com.,  1867,  2  Bush  (Ky.)  5. 
18  Art.  LTI,  sec.  53. 

277 


NEGRO   IN    COURT    ROOM 

17  Laws  of  Miss.,  1865,  p.  83. 

18  Hid.,  1866-67,  pp.  232-33. 

19  Laws  of  S.  0.,  1865,  p.  286. 

20  Laws  of  Tenn.,  1865-66,  p.  24. 

21  Art.  VIII,  sec.  2. 

22  Laws  of  Texas,  1866,  p.  59 ;  see  Laws  of  Texas,  1866, 
pp.  131-32. 

23  Ex  parte  Warren,  1868,  31  Texas  143. 

24  Laws  of  Texas,  1871,  p.  108. 

25  Laws  of  Va.,  1865-66,  pp.  89-90. 

26  Ibid.,  1866-67,  p.  860. 

27  Statutes  of  Calif.,  1863,  p.  69. 

28  People  v.  Washington,  1869,  36  Calif.  658. 

29  Laws  of  Ind.,  1865,  p.  162. 

30  Ibid.,  1865,  p.  161. 

31  Laws  of  Nev.,  1864-65,  p.  403. 

32  Laws  of  Wash.,  1866,  p.  91. 

33  Ibid.,  1869,  p.  103. 

84  Laws  of  W.  Va.,  1866,  p.  85. 

35  Stat.  L.,  336,  chap.  114,  par.  4. 

36  Burns's  Annotated  Eevisal  of  1901,  LT,  sec.  3293. 

37  Pub.  Acts  of  Mich.,  1885,  p.  132. 

38  Laws  of  N.  Y.,  1895,  I,  p.  974. 

39  Laws  of  O.,  1884,  pp.  15-16 ;  1894,  pp.  17-18. 

40  Acts  and  Resolves  of  R.  L,  1884-85,  p.  171. 

41  Laws  of  Ark.,  1866-67,  p.  99. 

42  Laws  of  La.,  1880,  p.  52. 

43  Laws  of  Miss.,  1866-67,  p.  233. 

44  Laws  of  Tenn.,  1865-66,  p.  24. 

45  Ibid.,  p.  65. 

46  Ibid.,  1867-68,  pp.  32-33. 

47  Va.  v.  Rives,  1879,  100  U.  S.  313 ;  Ex  parte  Va.,  1879, 
100  U.  S.  339;  Strauder  v.  W.  Va.,  100  U.  S.  303;  Carter  v. 

278 


NOTES 

Texas,  1899,  177  U.  S.  443;  Kogers  v.  Ala.,  1903,  192 
U.  S.  226. 

48Neal  v.  Del.,  1880,  103  U.  S.  370;  Bush  v.  Com.  of  Ky., 
1882,  107  U.  S.  110;  Ex  parte  Murray,  1895,  66  Fed.  297; 
Smith  v.  State,  1895,  162  U.  S.  592 ;  Binyon  v.  U.  S.  1903,  76 
S.  W.  265. 

49  Carter  v.  Texas,  1899,  177  U.  S.  443,  at  p.  447. 

50Eastling  v.  Ark.,  1901,  62  S.  W.  584;  Wilson  v.  Ga., 
1882,  69  Ga.  224;  Green  v.  Ala.,  1882,  73  Ala.  26;  Ky.  v. 
Jackson,  1880,  78  Ky.  509;  Hicks  v.  Ky.,  1881,  3  Ky.  Law 
Eep.  87;  Haggard  v.  Ky.,  1881,  79  Ky.  366;  Smith  v.  Ky., 
1896,  33  S.  W.  825 ;  La.  v.  Casey,  1892,  44  La.  Ann.  969 ;  La. 
v.  Joseph,  1893,  45  La.  Ann.  903 ;  La.  v.  Murray,  1895,  47  La. 
Ann.  1424;  Cooper  v.  Md.,  1885,  64  Md.  40;  Mo.  v.  Brown, 
1894,  119  Mo.  527;  Bullock  v.  N.  J.,  1900,  47  At.  Kep.  62; 
N.  C.  v.  Sloan,  1887,  97  N.  C.  499;  N.  C.  v.  Peoples,  1902, 
131  N.  C.,  784;  N.  C.  v.  Daniels,  1904,  46  S.  E.  743;  S.  C.  v. 
Brownfield,  1901,  60  S.  C.  509 ;  Williams  v.  Texas,  1875,  44 
Texas  34;  Cavitt  v.  Texas,  1883,  15  Texas  Ct.  of  Ap.  Kep. 
190 ;  Carter  v.  Texas,  1898,  46  S.  W.  236 ;  Collins  v.  Texas, 
1900,  60  S.  W.  42;  Smith  v.  Texas,  1900,  58  S.  W.  97;  Parker 
v.  Texas,  1901,  65  S.  W.  1066;  Hubbard  v.  Texas,  1902,  67 
S.  W.  413;  Carter  v.  Texas,  1903,  76  S.  W.  437;  Fugett  v. 
Texas,  1903,  77  S.  W.  461 ;  Martin  v.  Texas,  1903,  72  S.  W.  386. 

51  Whitney  v.  Texas,  1900,  59  S.  W.  895. 

52  Kipper  v.  Texas,  1901,  62  S.  W.  420. 

53  Leach  v.  Texas,  1901,  62  S.  W.  422. 

54  Smith  v.  Texas,  1902,  69  S.  W.  151. 

55  Smith  v.  Texas,  1903,  77  S.  W.  453. 

56  Thompson  v.  Texas,  1903,  74  S.  W.  914. 

57  McPherson  v.  McCarrick,  1900,  61  P.  1004. 

58  Kaleigh,  N.  C.,  News  and  Observer,  Feb.  17,  1910. 
69  Whiteny  v.  Texas,  1901,  63  S.  W.  879. 

379 


NEGRO   IN    COURT    ROOM 

60  Laws  of  S.  C.,  1865,  pp.  278-91 ;  1866,  pp.  387-90. 

61  Pace  and  Cox  v.  State,  1881,  69  Ala.  231. 

62  Pace  v.  Ala.,  1882,  106  U.  S.  583.    See  also  Ellis  v.  Ala., 
1868,  42  Ala.,  525 ;  Lord  v.  Ala.,  1875,  53  Ala.  150. 

63  Laws  of  S.  C.,  1865,  p.  271. 

64  Laws  of  Fla.,  1865,  p.  24. 

65  Laws  of  Ky.,  1865-66,  p.  42. 
6(5  Ibid.,  1869,  p.  52. 

67  Laws  of  Mo.,  1903,  p.  161. 
88  Laws  of  Ky.,  1904,  p.  83. 

69  Laws  of  Del.,  1866-69,  p.  161. 

70  Laws  of  Miss.,  1866-67,  pp.  232-33. 

71  Laws  of  S.  C.,  1866,  p.  405. 

72  Boston  Post,  May  22,  1909.     The  volume  of  New  York 
reports    containing   this   case   is   not   yet    accessible.     It    is 
referred  to,  however,  in  117  N.  Y.  Sup.,  p.  116. 


CHAPTER   XI 

SUFFRAGE 

THE  Fifteenth  Amendment  to  the  Constitution  of  the 
United  States,  ratified  on  March  30,  1870,  reads:  "The 
right  of  citizens  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged  by  the  United  States  or  by  any 
State  on  account  of  race,  color,  or  previous  condition  of 
servitude."  In  the  face  of  this  unequivocal  constitutional 
provision,  it  would  seem  impossible  to  have  a  legal  race 
distinction  in  the  matter  of  suffrage.  It  is  plain  that,  if 
a  State  or  the  United  States  makes  a  law  that  in  any  way 
denies  or  abridges  the  right  of  a  citizen  to  vote  on  account 
of  his  race,  such  an  enactment  is  in  violation  of  the 
Amendment.  The  only  State  or  Federal  statute  or  State 
constitutional  provision  involving  a  race  distinction  that 
would  be  valid  under  the  Fifteenth  Amendment  would 
be  one  that  did  not  amount  to  a  denial  or  abridgment 
of  the  right  to  vote.  For  instance,  a  State  might  require 
white  and  Negro  electors  to  cast  their  ballots  in  different 
boxes,  or  in  different  parts  of  the  booth,  or  even  in  dif- 
ferent booths;  or  it  might  require  them  to  register  on 
different  days,  or  before  different  registrars.  If  the  Negro 
was  given  the  same  opportunity  to  register  and  vote  as 
the  white  man,  the  requirements  of  separate  registering 
and  balloting  would  be  race  distinctions  in  the  matter  of 

281 


SUFFRAGE 

suffrage,  but  they  would  not  be  denials  or  abridgments 
of  the  right  to  vote  and,  hence,  might  be  supported  under 
the  Fifteenth  Amendment.  Any  such  requirements  have 
not  been  found  in  the  State  Constitutions  or  statutes; 
they  are  only  suggested  as  possible  race  distinctions  which 
might  be  permissible. 

It  follows,  therefore,  that  the  race  distinctions  to  be 
considered  in  this  chapter  exist,  not  in  conformity  to  law, 
as  in  the  case  of  separate  schools  and  public  conveyances, 
but  in  defiance  of  law  or  by  legal  subterfuges,  and  are 
properly  called  discriminations. 


NEGRO  SUFFRAGE  BEFORE  1865 

The  suffrage  requirements  as  to  race  up  to  1865  serve 
as  a  background  for  the  events  after  that  date.  A  review  l 
of  the  acts  of  territorial  government  and  State  Constitu- 
tions of  the  Territories  and  States  of  the  United  States 
reveals  the  following  facts:  Maine,  Massachusetts,  New 
Hampshire,  Rhode  Island,  and  Vermont  appear  not  to 
have  had  any  race  distinctions  in  suffrage.  Alabama,  Ar- 
kansas, California,  Colorado,  Florida,  Georgia,  Illinois, 
Indiana,  Iowa,  Louisiana,  Michigan,  Minnesota,  Missis- 
sippi, Missouri,  Nevada,  Ohio,  Oregon,  South  Carolina, 
and  West  Virginia  never  permitted  any  but  white  males 
to  vote  at  any  time  between  the  Revolution  and  1865. 
The  Constitutions  of  Kansas  2  of  1855  and  of  Minnesota 3 
of  1857  permitted  civilized  Indians  to  vote,  though  the 
same  privilege  was  not  extended  to  Negroes.  Kentucky,* 
in  1799,  gave  the  suffrage  to  "  free "  persons,  but  ex- 
pressly excepted  Negroes,  mulattoes,  and  Indians.  Tex- 

282 


NEGRO    SUFFRAGE    BEFORE    1865 

as,5  in  1845,  gave  the  right  to  vote  to  free  male  persons 
but  excepted  Indians  not  taxed,  Africans,  and  descendants 
of  Africans. 

Besides  the  above-named  States  which  either  made  no 
race  distinctions  at  all  or  else  always  made  distinctions 
as  to  Negroes,  several  States,  at  one  time  or  another,  ex- 
tended a  limited  suffrage  to  Negroes.  The  Constitution 
of  New  York  6  of  1821,  giving  the  right  to  vote  to  male 
citizens,  had  the  provision  that  "no  man  of  color,  unless 
he  shall  have  been  for  three  years  a  citizen  of  this  State, 
and  for  one  year  next  preceding  any  election  shall  be 
seized  and  possessed  of  a  freehold  estate  of  the  value  of 
two  hundred  and  fifty  dollars,  over  and  above  all  debts 
and  incumbrances  charged  thereon,  and  shall  have  been 
actually  rated  and  paid  a  tax  thereon,  shall  be  entitled  to 
vote  at  any  such  election."  There  was  no  property  test 
for  white  voters.  The  Constitution7  of  1846  had  the 
same  provision  about  Negro  voters.  The  question  of  equal 
suffrage  to  Negroes  was  submitted 8  separately  in  1846, 
and  rejected  by  a  vote  of  85,306  to  223,834.  It  was  again 
submitted  in  1860,  with  like  result,  the  vote  being  197,- 
503  to  337,984. 

The  Constitution  of  North  Carolina9  of  1835,  as 
amended,  provided  that  no  free  Negro,  free  mulatto,  or 
free  person  of  mixed  blood,  descended  from  Negro  ances- 
tors to  the  fourth  generation  inclusive,  though  one  ances- 
tor in  each  generation  might  have  been  a  white  person, 
should  vote  for  members  of  the  "  senate  or  house  of  com- 
mons "  of  the  State.  Negroes  who  paid  a  certain  poll 
tax  were  allowed  to  vote  until  this  Amendment  went  into 
effect.  Governor  W.  W.  Kitchin,10  of  that  State,  says: 

283 


SUFFRAGE 

"  There  were  21,000  free  Negroes  in  North  Carolina  in 
1835,  4,000  of  whom  were  entitled  then  to  vote/'  After 
1835  Negroes  were  not  allowed  to  vote  there  again  until 
after  the  War. 

The  Constitution  of  Tennessee  "  of  1 834  provided  that 
no  person  should  be  disqualified  from  voting  in  any  elec- 
tion who  was  then  by  the  laws  of  the  State  a  competent 
witness  in  a  court  of  justice  against  a  white  person.  One 
cannot  tell  how  many  Negroes  were  qualified  to  vote 
under  this  provision.  The  Constitution  of  Wisconsin  12 
of  1848  limited  the  privilege  of  voting  to  white  per- 
sons, but  the  Supreme  Court 13  of  that  State  held  in 
1866  that  suffrage  had  been  extended  to  Negroes  by  a 
vote  of  the  people  at  the  general  election  on  November 
6,  1849. 

Several  States  which  at  first  allowed  Negro  freemen 
to  vote  later  withdrew  the  privilege.  Until  the  Kevolu- 
tion,  they  were  allowed  to  vote  in  every  State  except 
Georgia  and  South  Carolina.  Between  1792  and  1834, 
Delaware,  Maryland,  Virginia,  and  Kentucky  denied  the 
suffrage  to  Negroes.  As  has  been  seen,  North  Carolina 
permitted  as  restricted  Negro  suffrage  until  1835.  New 
Jersey  took  the  suffrage  from  the  Negro  in  1807,  Con- 
necticut in  1814,  and  Pennsylvania  in  1838;  and  Tennes- 
see, in  1834,  limited  the  right  to  those  Negroes  who  were 
competent  as  witnesses  against  white  persons.  New  York, 
in  1821,  required  a  very  high  property  qualification  not 
required  of  white  persons.1*  Wisconsin  alone  changed  its 
law  so  as  to  allow  Negroes  to  vote  on  equality  with 
white  persons.  New  York  tried  twice  to  do  so,  but  failed 
each  time. 

284 


SUFFKAGE    BETWEEN    1865    AND    1870 

In  each  of  the  acts  of  territorial  government  drawn 
up  by  Congress,  suffrage  was  restricted  to  free  white  per- 
sons. This  fact,  together  with  the  fact  that  the  West  Vir- 
ginia Constitution  of  1861-63  also  restricted  the  suffrage 
to  white  persons,  tends  to  show  the  attitude  of  the 
National  Government  in  the  early  days  toward  Negro 
suffrage. 

SUFFRAGE   BETWEEN  1865  AND   1870 

In  1865,  the  only  States  that  permitted  Negroes  to 
vote  on  the  same  footing  as  white  persons  were  Maine, 
Massachusetts,  New  Hampshire,  Ehode  Island,  Vermont, 
and  Wisconsin.  New  York  and  Tennessee  permitted  a 
restricted  Negro  suffrage. 

The  changes  in  the  suffrage  laws  between  1865  and 
1870  indicate  what  might  have  taken  place  had  not  the 
United  States  interfered  with  the  Fifteenth  Amendment. 
The  Eeconstruction  Constitutions  15  of  the  Southern  States 
in  1868  and  1869  extended  the  suffrage  to  Negroes. 
These  Constitutions,  however,  did  not  express  the  will  of 
the  Southern  white  people  at  the  time  in  regard  to  suf- 
frage. The  Constitution  of  Maryland,16  of  1867,  permit- 
ted only  white  persons  to  vote;  and  that  of  Nebraska,17  of 
1866-67,  under  which  it  sought  admission  to  the  Union, 
did  not  give  the  suffrage  to  Negroes. 

Negro  suffrage  was  voted  down  in  New  York 18  in 
1868,  as  it  had  been  in  1846  and  1860,  by  a  vote  of  282,- 
403  to  249,802.  By  the  act  of  territorial  government  of 
Colorado,  of  1861,  suffrage  was  restricted  to  white  per- 
sons. But  an  act  of  the  legislature  19  of  that  Territory, 
enacted  in  November,  1861,  seemed  to  extend  the  right 

285 


SUFFRAGE 

to  vote  to  Negroes.  This  was  amended,20  however,  in 
1864,  by  expressly  excluding  Negroes  and  mulattoes  from 
the  suffrage.  The  legislature  of  Connecticut 21  of  1865 
proposed  an  amendment  to  the  Constitution  whereby  Ne- 
groes would  be  given  the  right  to  vote,  the  same  to  be 
submitted  to  the  people  for  their  ratification  Minnesota  22 
and  Wisconsin,23  in  1865,  submitted  constitutional  amend- 
ments providing  for  Negro  suffrage.  According  to  Rep- 
resentative Hardwick,2*  of  Georgia,  "  Negro  suffrage  was 
rejected  by  decisive  majorities."  It  was  after  the  1865 
Amendment  had  been  defeated  at  the  polls  in  Wisconsin 
that  the  Supreme  Court  of  that  State,  as  has  been  seen, 
held  that  Negroes  had  been  given  the  right  to  vote  by  a 
law  of  1849. 

The  word  "  white "  was  stricken  from  the  Constitu- 
tion of  Iowa  25  by  the  legislature  of  1867-68,  and  this 
action  was  ratified  by  a  vote  of  105,384  to  81,384.  Minne- 
sota 26  amended  its  Constitution  in  1868  so  as  to  extend 
suffrage  to  Negroes.  On  December  30,  1867,  the  word 
"  white  "  was  stricken  from  the  election  laws  of  Dakota 
Territory.27 

On  June  8,  1867,  Congress  passed,  over  the  President's 
veto,  a  bill  first  introduced  in  1865  establishing  Negro 
suffrage  in  the  District  of  Columbia.  Before  its  passage, 
provision  had  been  made  by  Congress  to  submit  the  ques- 
tion to  a  vote  of  the  people.  The  extension  of  suffrage 
to  Negroes  was  rejected  by  a  vote  of  6,521  to  35  in  Wash- 
ington City  and  812  to  1  in  Georgetown.  In  spite  of  this 
vote  the  Thirty-ninth  Congress  ordained  Negro  suffrage 
for  the  District.  After  four  years,  the  government  of  the 
District  was  so  changed  that  suffrage  was  taken  from  all 

286 


SUFFRAGE    BETWEEN    1865    AND    1870 

the  residents.     In  1866,  Congress  established  Negro  suf- 
frage in  all  the  Territories  of  the  United  States.28 

The  second  section  of  the  Fourteenth  Amendment, 
proposed  June  16,  1866,  and  declared  in  force  June  28, 
1868,  reads :  "  Eepresentatives  shall  be  apportioned  among 
the  several  States  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  State,  ex- 
cluding Indians  not  taxed.  But  when  the  right  to  vote 
at  any  election  for  the  choice  of  electors  for  President 
and  Vice-President  of  the  United  States,  Eepresentatives 
in  Congress,  the  Executive  and  Judicial  officers  of  a  State, 
or  the  members  of  the  Legislature  thereof,  is  denied  to 
any  of  the  male  inhabitants  of  such  State,  being  twenty- 
one  years  of  age,  and  citizens  of  the  United  States,  or  in 
any  way  abridged,  except  for  participation  in  rebellion, 
or  other  crime,  the  basis  of  representation  therein  shall 
be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male  citi- 
zens twenty-one  years  of  age  in  such  State."  The  Amend- 
ment did  not  prohibit  the  denial  or  abridgment  of  the 
right  to  vote  on  account  of  race  or  color,  but  provided  that, 
if  such  right  was  denied  or  abridged,  the  State  must 
suffer  the  consequence  of  having  its  representation  in  Con- 
gress reduced.  One  feels  safe  in  saying  that  the  purpose 
of  the  National  Government  in  adopting  this  section  of 
the  Fourteenth  Amendment  was  to  induce  the  States, 
particularly  the  Southern  States,  to  extend  suffrage  to  the 
Negro.  With  the  possible  exception  of  Minnesota,  no 
State  appears  to  have  heeded  the  warning  between  1868 
and  1870. 

One  cannot  say  what  would  have  been  the  result  had 
287 


SUFFRAGE 

the  National  Government  rested  there — whether  or  not  of 
their  own  accord  the  various  States  would  have  extended 
the  suffrage  to  Negroes — because,  within  less  than  two 
years,  the  Fifteenth  Amendment  had  deprived  the  States 
of  any  choice  in  the  matter  by  providing  that  they  must 
not  deny  or  abridge  the  right  to  vote  on  account  of  race 
or  color. 

SUFFRAGE   BETWEEN  1870  AND  1890 

At  the  time  of  the  ratification  of  the  Fifteenth  Amend- 
ment, in  1870,  the  following  States  still  restricted  the  suf- 
frage to  white  persons:  California,  Colorado,  Connecticut, 
Delaware,  Indiana,  Kansas,  Kentucky,  Maryland,  Mich- 
igan, Nevada,  New  Jersey,  Ohio,  Oregon,  and  Pennsylva- 
nia. Illinois  29  adopted  a  new  Constitution  in  1870  which 
omitted  'the  word  "  white."  Missouri 30  amended  its  Con- 
stitution on  November  8,  1870,  after  the  Fifteenth  Amend- 
ment went  into  effect,  by  erasing  the  word  "  white,"  and 
Virginia,31  in  its  Constitution  of  1870,  extended  the  suf- 
frage to  "male  citizens."  It  is  needless  to  say  that  all 
the  Constitutions  adopted  since  1870  have  omitted  the 
word  "  white "  from  the  suffrage  qualifications,  so  it  is 
not  worth  while  to  note  the  various  Constitutions  and 
Amendments  that  have  been  adopted  since  that  date. 
But  in  some  State  Constitutions  which  have  not  been 
changed  within  the  last  forty  years,  one  still  finds  the 
provision  that  only  "  white  male  citizens "  are  electors. 
This  is  true  of  Maryland.32  Attempts  have  been  made  to 
amend  the  Constitution  by  erasing  the  word  "  white,"  but 
the  objection  has  been  made  that  it  is  null  and  void  33 
anyway  by  the  Fifteenth  Amendment,  and  that  it  would 

288 


SUFFRAGE    BETWEEN    1870   AND    1890 

be  too  expensive  to  call  a  constitutional  convention  or 
hold  an  election  solely  for  the  purpose  of  erasing  a 
"  dead  "  word. 

The  history  of  the  ratification  of  the  Fifteenth  Amend- 
ment— the  opposition  it  provoked  and  the  means  that  had 
to  be  adopted  to  procure  its  ratification  by  the  Southern 
States — is  found  in  the  records  of  Congress,  newspapers, 
and  political  discussions  of  that  day.  Very  little  of  it  has 
been  preserved  in  the  laws  of  the  States.  In  the  follow- 
ing resolution  by  the  legislature  .of  Oregon s*  is  found 
one  of  the  few  traces  of  the  opposition  to  the  Amend- 
ment occurring  in  the  laws  of  a  State  outside  the 
South : 

"  Whereas,  the  State  of  Oregon  was,  on  the  fourteenth 
day  of  February,  A.D.,  1859,  admitted  into  the  Federal 
Union,  vested  with  the  right  to  declare  what  persons 
should  be  entitled  to  vote  within  her  boundaries ;  and  until 
she,  by  her  voluntary  act,  surrenders  that  right,  the  Con- 
gress of  the  United  States  has  no  authority  to  interfere 
with  the  conditions  of  suffrage  within  the  boundaries  of 
the  State  of  Oregon:  and 

"  Whereas,  the  Congress  of  the  United  States,  by 
means  of  an  arbitrary  majority  of  votes  acquired  by  the 
power  of  the  bayonet,  has  sought  to  force  upon  the  several 
States  the  so-called  Fifteenth  Amendment  to  the  Federal 
Constitution,  in  direct  violation  of  the  terms  under  which 
the  State  of  Oregon  was  admitted  into  the  Sisterhood  of 
States;  therefore 

"  Be  it  resolved  by  the  Senate,  the  House  concurring : 

"  That  the  so-called  Fifteenth  Amendment  is  an  in- 
fringement upon  the  popular  rights,  and  a  direct  falsifica- 
20  289 


SUFFRAGE 

tion  of  the  pledges  made  to  the  State  of  Oregon  by  the 
Federal  Government. 

"  Resolved,  that  the  said  Fifteenth  Amendment  be  and 
the  same  is  hereby  rejected. 

"  Resolved,  that  the  Governor  be  requested  to  transmit 
copies  of  this  resolution  to  the  Secretary  of  State  of  the 
United  States  and  to  the  Senators  and  Representatives 
from  the  State  of  Oregon  in  the  Congress  of  the  United 
States." 

The  probable  explanation  of  this  opposition  of  Oregon 
to  the  Fifteenth  Amendment  lies  in  its  unwillingness  to 
give  the  ballot  to  the  Japanese,  Chinese,  and  Indians  in 
the  State. 

The  feeling  of  New  York36  toward  Negro  suffrage  in 
1870  appears  to  be  different  from  that  of  Oregon.  A 
statute  was  passed  prohibiting  any  registrar  or  inspector 
of  elections  to  demand  any  oath  or  ask  any  questions  of 
a  Negro  different  from  what  was  demanded  of  white  per- 
sons, or  to  reject  the  name  of  any  colored  person  from 
registry  except  for  the  same  causes  as  would  make  it  his 
duty  to  reject  the  name  of  a  white  person.  The  violation 
of  this  statute  was  a  misdemeanor,  punishable  by  a  fine 
of  five  hundred  dollars  and  imprisonment  for  six  months. 

In  order  to  make  the  prohibitions  of  the  Fifteenth 
Amendment  effective,  on  May  31,  1870,  two  months 
after  the  ratification  of  the  Amendment,  Congress  passed 
an  Act,38  the  first  section  of  which  reads :  "  All  citizens 
of  the  United  States,  who  are  or  shall  be  otherwise  quali- 
fied by  law  to  vote  at  any  election  by  the  people  in  any 
State,  Territory,  district,  county,  city,  parish,  township, 
school  district,  municipality,  or  other  territorial  division, 

290 


SUFFRAGE    BETWEEN    1870   AND    1890 

shall  be  entitled  and  allowed  to  vote  at  all  such  elections 
without  distinction  of  race,  color,  or  previous  condition 
of  servitude,  any  constitution,  law,  custom,  usage,  or  regu- 
lation in  any  State,  Territory,  or  by  or  under  its  author- 
ity, to  the  contrary  notwithstanding." 

The  fourth  section  of  the  "  Enforcement  Act,"  as  the 
Act  of  1870  was  called,  provided  for  the  punishment  of 
any  person  who  should,  by  force,  bribery,  threats,  intimi- 
dation, or  other  unlawful  means,  hinder,  delay,  or  combine 
with  others  to  hinder,  delay,  prevent,  or  obstruct  any 
citizen  from  doing  any  act  required  to  be  done  to  qualify 
him  to  vote,  or  from  voting  at  any  election. 

In  1875,  two  inspectors  of  a  municipal  election  in 
Kentucky  were  indicted  for  refusing  to  receive  and  count 
the  vote  of  a  Negro.  The  Supreme  Court 3T  of  the  United 
States,  to  which  the  case  came  by  reason  of  a  division  of 
opinion  of  the  Circuit  Court,  held  that  the  Fifteenth 
Amendment  did  not  confer  the  right  of  suffrage,  but 
rather  invested  citizens  with  the  right  of  exemption  from 
discrimination  in  the  exercise  of  the  elective  franchise  on 
account  of  their  race,  color,  or  previous  condition  of  servi- 
tude. The  fourth  section  of  the  Act  of  1870,  by  its  lan- 
guage, did  not  confine  its  operation  to  unlawful  discrim- 
ination on  account  of  race  or  color  and  was,  therefore,  un- 
constitutional. The  "Enforcement  Act"  of  1870,  like 
the  Civil  Eights  Bill  of  1875,  failed  in  its  desired  effect 
because  it  was  too  far-reaching  in  its  scope.  Had  the  Act 
of  1870  been  upheld,  the  Federal  authorities  would  have 
taken  complete  control  of  all  elections,  State  as  well  as 
Federal. 

The  years  between  1870  and  1890  are  known  for  the 
291 


SUFFRAGE  - 

actual  race  distinctions  in  suffrage.  Between  1870  and 
1877,  the  white  people  of  the  South  were  largely  disfran- 
chised, not  because  of  their  race,  but  because  of  their 
participation  in  the  War.  After  1877,  the  Negroes  were 
largely  disfranchised  by  unlawful  methods  adopted  by  the 
white  people  of  the  South.  If  this  were  a  history  of  the 
actual  race  distinctions  in  suffrage,  it  would  be  necessary 
to  consider  at  length  the  "  tissue  ballots,"  the  stuffing  of 
ballot  boxes,  the  intimidation  of  Negroes  by  the  Ku  Klux 
Klan  and  other  bodies  of  white  men,  and  other  election 
devices  and  practices  in  the  South  at  that  time.  But  this 
study,  as  has  been  said  before,  is  confined  to  the  race  dis- 
tinctions in  the  law,  not  those  in  defiance  of  the  law.  Out 
of  all  the  suffrage  irregularities  of  the  period  very  little 
suffrage  law  was  evolved.  Few  judicial  decisions  and  no 
statutes  bearing  directly  on  the  relation  of  race  to  suffrage 
have  been  found. 

Some  cases  of  intimidation-  of  Negroes  at  the  polls 
reached  the  courts  of  record.  In  Lawrence  County,  Ohio, 
in  1870,  for  instance,  two  white  men  by  threats  of  violence 
kept  three  Negroes  from  voting.  One  of  the  white  men 
was  convicted  in  the  Federal  court38  under  the  Act  of 
1870,  and  imprisoned  six  months;  the  other  was  acquit- 
ted because  he  had  not  been  heard  to  use  threatening  lan- 
guage. In  1871  a  white  man  in  South  Carolina  was  con- 
victed in  the  Federal  court89  for  conspiring  to  keep  a 
Negro  from  voting  at  a  congressional  election.  The  same 
year,  in  a  contested  election  for  mayor  of  Leavenworth, 
Kansas,  the  defeated  candidate  claimed  that  he  would 
have  been  elected  had  not  a  number  of  Negroes  been  im- 
properly kept  from  voting.  He  did  not  show  that  they 

292 


SUFFRAGE    BETWEEN    1870   AND    1890 

had  been  in  the  ward  thirty  days  as  required  by  the  elec- 
tion law  of  the  State,  and  the  court40  held  that  Negroes 
must  satisfy  the  same  requirements  as  to  residence  as 
other  voters.  In  a  State  election  in  Louisiana,  in  1872, 
it  was  claimed,  upon  the  affidavits  of  four  thousand  voters, 
that  the  votes  of  ten  thousand  Negroes  had  been  sup- 
pressed because  of  their  race  and  color.41  A  tax  collector 
in  Delaware,  in  1873,  refused  or  failed  to  collect  taxes 
from  Negroes  when  the  payment  of  taxes  was  a  prerequi- 
site to  voting.  The  Federal  court 42  held  that  it  had  juris- 
diction because  the  tax  collector  was  a  State  officer  and, 
thus,  it  was  the  State  denying  and  abridging  the  right  to 
vote  on  account  of  race.  Over  one  hundred  men  were 
indicted  in  the  Federal  court  of  Louisiana  in  1874  for 
intimidating  Negroes  at  the  polls.43  The  same  year  the 
judges  of  the  municipal  election  of  Petersburg,  Virginia, 
were  indicted  for  refusing  to  allow  a  number  of  Negroes 
to  vote.44  In  1878,  a  Negro  in  Illinois  who  was  denied 
the  right  to  vote  at  a  school  election  sued  and  recovered 
a  hundred  dollars  damages.45  In  Georgia,  in  1844,  sev- 
eral white  men  were  convicted  in  the  circuit  court  of  the 
United  States  for  intimidating,  beating,  and  maltreating 
Negroes  to  keep  them  from  voting.  The  Supreme  Court 4e 
held  that  Congress  had  power  to  regulate  Federal  elec- 
tions and  could  prevent  such  intimidation. 

It  will  be  noticed  that  nearly  all  of  the  cases  cited 
above  are  along  the  same  line — intimidation  of  Negroes 
to  keep  them  from  voting.  Several  constitutional  prin- 
ciples, however,  relating  to  suffrage  were  evolved  out  of 
the  cases  decided  during  this  period.  In  some  of  these 
eases  a  Negro  was  not  a  party  at  all.  It  was  thought  at 

293 


SUFFRAGE 

first,  for  instance,  that  suffrage  was  a  right  of  citizenship 
and  that  the  Fourteenth  Amendment  entitled  every  citi- 
zen to  vote.  Consequently,  a  proceeding  was  started  in 
the  courts  of  Kentucky  in  1874  to  establish  the  right  of 
a  woman  to  vote.  The  case  went  up  to  the  Supreme 
Court47  of  the  United  States  which  held  that  the  Con- 
stitution of  the  United  States  does  not  confer  the  right 
of  suffrage  upon  anyone.  Next,  it  was  thought  that  the 
Fifteenth  Amendment  conferred  the  right  to  vote  upon 
Negroes,  but  the  case  of  United  States  v.  Reese  settled 
this  point  by  deciding  that  the  Amendment  did  not  con- 
fer upon  Negroes  the  right  to  vote,  but  the  right  not  to 
be  discriminated  in  voting  on  account  of  race,  color,  or 
previous  condition  of  servitude.  Despite  the  Fourteenth 
and  Fifteenth  Amendments,  the  principle  remains  that 
the  individual  States  retain  the  right  to  prescribe  the 
qualifications  for  voting  so  long  as  they  do  not  discrim- 
inate against  persons  on  account  of  race,  color,  or  previous 
condition  of  servitude. 


SOUTHERN  SUFFRAGE   AMENDMENTS   SINCE    1890 

In  1890,  a  distinct  departure  was  made  in  the  develop- 
ment of  the  law  of  suffrage.  For  thirteen  years,  roughly 
speaking,  the  Negroes  had  been  in  a  great  measure  dis- 
franchised by  the  illegal  means  already  referred  to.  Ac- 
cording to  the  Constitutions  and  laws  of  the  Southern 
States,  the  Negro  had  precisely  the  same  right  to  vote  as 
the  white  person.  Yet  he  did  not  vote,  or,  if  he  voted,  his 
ballot  came  to  naught.  The  Southern  white  people,  wear- 
ied of  using  underhand  methods  of  eliminating  the  effect 

294 


SOUTHEKN   SUFFRAGE   AMENDMENTS   SINCE    1890 

of  Negro  suffrage,  turned  to  seek  a  method  under  the  law 
to  accomplish  the  same  result.  The  Fifteenth  Amend- 
ment seemed  to  offer  an  insuperable  obstacle.  The  prob- 
lem was  how  to  evade  this  constitutional  provision.  Speak- 
ing of  this  difficulty,  the  Supreme  Court  of  Mississippi  *9 
said:  "Within  the  field  of  permissible  action  under  the 
limitations  proposed  by  the  Federal  Constitution,  the  Con- 
vention [the  Constitutional  Convention  of  Mississippi, 
1890]  swept  the  field  of  expedients  to  obstruct  the  exercise 
of  suffrage  by  the  Negro  race.  By  reason  of  its  previous 
condition  of  servitude  and  dependency,  this  race  had  ac- 
quired or  accentuated  certain  peculiarities  of  habit,  or 
temperament,  and  of  character,  which  clearly  distinguished 
it  as  a  race  from  the  whites.  A  patient,  docile  people; 
but  careless,  landless,  migratory  within  certain  limits, 
without  forethought;  and  its  criminal  members  given  to 
furtive  offences  rather  than  the  robust  crimes  of  the 
whites.  Restrained  by  the  Federal  Constitution  from  dis- 
criminating against  the  Negro  race,  the  Convention  dis- 
criminated against  its  characteristics  and  the  offences  to 
which  its  criminal  members  are  prone." 

Beginning  in  1890  the  Southern  States  have,  one  by 
one,  adopted  new  Constitutions  or  amended  their  old  ones 
so  as  to  change  considerably  the  qualifications  of  voters. 
Suffrage  amendments  have  been  adopted  by  the  Southern 
States  in  the  following  order:  Mississippi,50  1890;  South 
Carolina,51  1895;  Louisiana,62  1898;  North  Carolina,53 
1900;  Alabama,5*  1901;  Virginia,55  1901;  and  Georgia,59 
1908.  Maryland  57  has  made  two  separate  attempts,  one 
in  1905  and  the  other  in  1909,  to  amend  its  Constitution, 
but  has  failed  in  both  instances.  Florida,  Arkansas,  Ten- 

295 


SUFFRAGE 

nessee,  and  Texas  have  not  made  any  constitutional 
changes  in  the  matter  of  suffrage  which  might  be  called 
"  Suffrage  Amendments." 

The  phrase,  "  the  Suffrage  Amendments  in  the  South," 
has  been  used  so  often  that  the  idea  prevails  among  those 
unfamiliar  with  the  laws  .on  the  subject  that  suffrage  quali- 
fications in  the  Southern  States  are  fundamentally  dif- 
ferent from  those  in  other  States.  With  the  hope  of  mak- 
ing plain  wherein  suffrage  laws  in  the  South  are  similar 
to  and  wherein  they  differ  from  the  corresponding  laws 
of  other  States,  a  table  of  the  qualifications  of  electors 
in  all  the  States  and  Territories  of  the  United  States,  in- 
cluding Alaska,  Porto  Rico,  Hawaii,  and  the  Philippines, 
is  given  (see  pp.  322-339).  The  requirements  for  voters 
will  be  taken  in  the  order  given  in  the  tables  and  consid- 
ered with  reference  to  the  ways  in  which  they  lend  them- 
selves to  race  distinctions  and  discriminations. 

Citizenship 

In  order  to  vote,  one  must  be  a  citizen  of  the  United 
States  or  an  alien  who  has  taken  the  formal  step  toward 
naturalization  of  declaring  his  intention  to  become  a  citi- 
zen, with  the  exception  that,  in  a  few  States,  an  Indian 
who  has  severed  his  tribal  relationship  may  vote.  This 
suffrage  qualification  does  not  easily  lend  itself  to  race 
distinction  or  discrimination.  It  lies  within  the  power 
of  the  United  States,  not  of  the  States,  to  say  what  alien 
residents  may  become  citizens.58  If  Congress  says,  as  it 
does  in  the  Chinese  Exclusion  Act,59  that  Chinese  not  na- 
tives of  this  country  cannot  become  citizens,  it  follows 
that  they  cannot  demand  of  a  State  the  privilege  of  vot- 

296 


SOUTHERN   SUFFRAGE-  AMENDMENTS   SINCE    1890 

ing.  At  present,  a  statute 60  specially  provides  for  the 
naturalization  of  aliens  of  African  nativity  and  persons  of 
African  descent,  requiring  that  the  same  rules  shall  apply 
to  them  as  to  free  white  persons. 

The  only  case  that  has  been  found  involving  the  citi- 
zenship of  a  Negro  arose  in  Michigan  in  1872.01  A  Ne- 
gro, born  in  Canada  of  parents  who  had  been  slaves  in 
Virginia  but  who  had  gone  to  Canada  in  1834,  went  to 
Michigan  at  the  age  of  twenty.  The  question  was  whether 
he  was  a  citizen  of  the  United  States  and,  so,  entitled  to 
registration  as  a  voter.  The  Supreme  Court  of  the  State 
held  that,  when  his  parents  went  to  Canada,  they  were  no 
longer  under  the  jurisdiction  of  this  country.  The  son 
was  not  born  of  citizens  of  the  United  States,  nor  was 
he  born  under  the  jurisdiction  of  the  United  States,  and, 
therefore,  was  not  a  citizen  of  the  United  States. 

The  citizenship  requirement  in  the  Southern  States 
is  essentially  the  same  as  that  in  other  States  and  cannot 
be  said,  in  any  way,  to  involve  a  race  distinction. 

Age 

In  all  of  the  States  and  organized  Territories  an  elec- 
tor must  be  twenty-one  years  of  age  or  over.  In  the  Phil- 
ippines the  age  limit  is  twenty-three.  There  seems  to  be 
no  possible  race  distinction  in  the  age  requirement.  It 
may  be  that,  because  of  the  less  careful  record  of  dates  of 
birth  among  Negroes,  more  of  that  race  are  unable  to 
prove  that  they  are  twenty-one  years  old;  but  this  is  only 
a  question  of  evidence. 


297 


SUFFRAGE 

Sex 

All  except  four  of  the  States  limit  the  suffrage  to 
males.  This  requirement  cannot  possibly  involve  a  race 
distinction. 

Residence 

All  States  and  Territories  require  that  the  voter  shall 
have  resided  for  a  certain  length  of  time  previous  to  the 
election  in  the  particular  State  or  Territory,  in  the  County, 
and  in  the  precinct,  ward,  town,  or  other  political  division 
in  which  he  offers  to  vote.  The  residence  in  the  State 
varies  from  three  months  to  two  years,  in  the  County  or 
its  corresponding  division  from  thirty  days  to  one  year, 
and  in  the  precinct,  ward,  or  town  from  ten  days  to  one 
year.  It  is  noticeable  that  in  the  Southern  States  the 
required  residence  is,  as  a  rule,  somewhat  longer  than  in 
the  other  States.  Alabama,  Louisiana,  Mississippi,  North 
Carolina,  South  Carolina,  and  Virginia  all  require  a  resi- 
dence of  two  years  in  the  State,  while  Rhode  Island  is  the 
only  State  outside  the  South  that  requires  a  State  residence 
of  that  length.  Mississippi  is  the  only  State  that  requires 
a  voter  to  be  a  resident  of  the  precinct  one  year.  Louisi- 
ana requires  six  months  in  the  precinct,  while  thirty  days 
is  the  favorite  residence  with  the  other  States. 

The  greater  term  of  residence  required  in  the  South 
may  lend  itself  to  race  distinction  in  case  one  race  is  more 
migratory  than  the  other.  If,  for  instance,  the  Negro  is 
more  apt  to  move  about  from  place  to  place  than  the  white 
person,  more  Negroes  than  whites  will  be  unable  to  satisfy 
the  residence  qualification. 

298 


SOUTHERN    SUFFRAGE    AMENDMENTS    SINCE    1890 


The  following  States  require  the  payment  of  poll  taxes 
as  a  prerequisite  to  voting:  Alabama,  Arkansas,  Florida, 
Louisiana,  North  Carolina,  South  Carolina,  and  Tennes- 
see. Of  these  Alabama,  Arkansas,  and  North  Carolina 
require  the  payment  of  the  poll  tax  for  only  one  year 
preceding  the  election;  Florida,  Louisiana,  and  Missis- 
sippi, for  two  years  preceding;  and  Virginia,  for  three 
years  preceding  the  election.  Some  States  require  pay- 
ment of  both  property  and  poll  taxes;  and  some,  only  the 
latter.  The  law  of  Delaware  is  that  the  voter  must  have 
paid  a  county  tax  within  two  years,  assessed  six  months 
before  the  election,  not  specifying  whether  it  is  a  poll 
or  property  tax.  Georgia  provides  that  all  taxes  legally 
required  since  1877  must  have  been  paid  six  months  be- 
fore the  election.  Pennsylvania  requires  the  payment  of 
a  State  or  county  tax  within  two  years  to  be  assessed  two 
months  and  paid  one  month  before  the  election.  South 
Carolina  demands,  not  only  the  payment  of  the  poll  tax, 
but  of  all  taxes  for  the  preceding  year.  In  the  Philippines, 
the  elector  must  satisfy  other  tests  or  show  payment  of  an 
annual  tax  of  fifteen  dollars. 

The  payment  of  taxes  as  a  prerequisite  to  voting  is  not 
peculiar  to  the  Southern  States,  such  a  requirement  being 
found  in  Delaware,  Pennsylvania,  and  the  Philippines  as 
well.  The  poll  tax  and  the  requirement  of  payment  for 
more  than  the  year  next  preceding  the  election  are  found 
mostly  in  the  Southern  States.  In  the  Philippines  alone, 
it  appears,  the  payment  of  taxes  is  an  alternative  require- 
ment; that  is,  if  one  cannot  satisfy  this  qualification,  he 

299 


SUFFRAGE 

may,  nevertheless,  qualify  under  other  tests;  but  in  the 
States,  he  must  not  only  show  his  payment  of  taxes  but 
be  qualified  as  well  in  other  respects. 

In  two  ways  this  qualification  lends  itself  to  race  dis- 
tinctions. In  the  first  place,  if  Negroes  are  more  shiftless 
and  less  inclined  to  pay  their  taxes  than  white  people, 
more  of  them  will  be  unable  to  satisfy  this  test.  Secondly, 
if  they  are  careless  about  preserving  their  tax  receipts  for 
one,  two,  or  three  successive  years,  they  will  be  unable  to 
prove  the  payment  of  taxes  and,  thereby,  be  disqualified 
to  vote. 

Ownership  of  Property 

The  next  qualification  may  be  said  to  be  in  a  sense 
peculiar  to  the  Southern  States,  yet  not  entirely  so.  In 
Ehode  Island,  one  must  own  property  worth  one  hundred 
and  thirty-four  dollars  on  which  taxes  of  the  preceding 
year  have  been  paid  or  must  pay  an  annual  rental  of  seven 
dollars  to  be  entitled  to  vote  for  city  councillors  and  to 
vote  on  questions  of  finances.  In  Alaska,  to  be  entitled 
to  vote  in  municipal  elections,  one  must  be  the  owner  of 
substantial  property  interests  in  the  municipality.  In  the 
Philippines,  the  voter  must  be  able  to  satisfy  other  tests 
or  else  be  the  owner  of  property  assessed  at  two  hundred 
and  fifty  dollars. 

The  property  test  in  the  Southern  States  is  an  alterna- 
tive of  the  educational  tests.  That  is,  if  the  applicant 
cannot  satisfy  the  educational  test  but  can  satisfy  the 
property  test,  he  may  register  and  vote;  or  he  ma}'  do  so 
if  he  can  satisfy  the  education  but  not  the  property  test. 
Unless  special  mention  is  made  at  the  time,  this  will  be 

300 


SOUTHERN   SUFFRAGE   AMENDMENTS   SINCE    1890 

understood  in  the  following  discussion  of  these  two  quali- 
fications. When  it  is  said  that  such  and  such  property  or 
educational  qualification  is  required,  it  is  meant  only  thaty 
it  is  required  in  case  its  alternative  cannot  be  satisfied. 

In  Alabama,  the  property  requirement  is  that  the  ap- 
plicant for  registration  be  the  owner  or  the  husband  of  the 
owner  of  forty  acres  of  land  in  the  State  in  which  they 
reside  or  of  real  or  personal  property  worth  three  hundred 
dollars  upon  which  taxes  for  the  preceding  year  have  been 
paid.  In  Georgia  the  requirement  is  forty  acres  of  land 
in  the  State  or  five  hundred  dollars  worth  of  property  in 
the  State.  In  Louisiana,  the  requirement  is  three  hun- 
dred dollars  worth  of  property  and  payment  of  the  per- 
sonal taxes.  South  Carolina  prescribes  three  hundred  dol- 
lars worth  of  property  on  which  the  taxes  for  the  preced- 
ing year  have  been  paid.  Of  the  Southern  States  which 
have  altered  their  suffrage  laws  since  1890,  Mississippi, 
North  Carolina,  and  Virginia  have  not  provided  any  per- 
manent property  test. 

The  property  qualifications  cause  the  disfranchisement 
of  more  of  one  race  than  of  the  other  only  in  so  far  as  the 
first  is  more  shiftless  and  more  delinquent  in  the  payment 
of  taxes  than  the  other.  If  the  Negro  is  given  the  same 
opportunity  as  the  white  to  acquire  property,  he  has  an 
equal  opportunity  to  register  under  the  property  clause 
of  the  suffrage  laws. 

Educational  Test 

In  no  sense  is  the  educational  qualification  peculiar 
to  the  Southern  States.  As  early  as  1855,  Connecticut 
required  of  voters  ability  to  read  the  State  Constitution. 

301 


SUFFRAGE 

The  present  requirement,  as  amended  in  1897,  is  ability 
to  read  the  Constitution  and  statutes  of  the  State  in 
English.  In  1857,  Massachusetts  added  as  a  prerequisite 
to  voting  ability  to  read  the  Constitution  of  the  State  in 
English  and  write  one's  name.  The  Constitution  of  Wy- 
oming of  1889  provides  that  the  applicant  for  registration 
must  be  able  to  read  the  Constitution  of  the  State.  Cali- 
fornia, in  1894,  required  ability  to  read  the  Constitution 
in  English  and  write  one's  name.  Similar  requirements 
were  made  in  Maine  in  1893  and  in  Delaware  in  1900.  In 
the  territorial  possessions  of  the  United  States,  a  Ha- 
waiian elector  must  read,  speak,  and  write  English  or 
Hawaiian,  and  a  Filipino  must  speak,  read,  and  write 
English  or  Spanish.  In  the  Philippines  this  qualification 
is  an  alternative  of  the  ownership  of  property;  in  Hawaii 
and  the  States  mentioned  above  the  educational  qualifica- 
tion is  absolute. 

In  the  Southern  States  now  to  be  considered,  it  is  to 
be  remembered  that  the  applicant  must  satisfy  either  the 
education  or  the  property  test,  not  both.  In  Alabama  he 
must  be  able  to  read  and  write  the  Constitution  of  the 
United  States  in  English  unless  physically  disabled.  In 
Georgia  he  must  be  able  to  read  and  write  in  English  the 
Constitution  of  the  United  States  or  of  Georgia,  or  if 
physically  disabled  from  reading  and  writing,  to  "under- 
stand and  give  a  reasonable  interpretation  "  of  the  Con- 
stitution of  the  United  States  or  of  Georgia,  when  read  to 
him.  In  Louisiana  he  must  be  able  to  read  and  write  and 
must  make  his  application  for  registration  in  his  own 
handwriting.  Mississippi  requires  that  the  applicant  must 
be  able  to  read  or  understand  or  reasonably  interpret  any 

302 


SOUTHERN    SUFFRAGE    AMENDMENTS   SINCE    1890 

part  of  the  Constitution  of  the  State.  North  Carolina 
requires  ability  to  read  and  write  the  State  Constitution 
in  English;  South  Carolina  requires  also  an  ability  to  read 
and  write  the  Constitution,  but  does  not  specify  that  the 
test  must  be  in  English.  Virginia  does  not  declare  that 
the  applicant  must  be  able  to  read  and  write,  but  requires 
him  to  make  his  application  for  registration  in  his  own 
handwriting,  and  prepare  and  deposit  his  ballot  without 
aid.  This  does  not  apply  to  those  registering  under  the 
"  Grandfather  Clause "  to  be  considered  later. 

All  States 62  and  Territories,  except  Georgia,  Missouri, 
New  Jersey,  North  Carolina,  South  Carolina,  and  New 
Mexico  have  adopted  a  blanket  official  ballot  which  is,  in 
effect,  the  requirement  of  an  educational  qualification  for 
voting.  By  this  system  the  State  provides  a  uniform  bal- 
lot containing  the  names  of  all  persons  of  all  parties  to 
be  voted  for,  and  requires  the  voter  to  mark  and  deposit 
his  own  ballot.  Where  no  party  emblem — as  the  elephant, 
cock,  or  anvil — heads  the  list  of  candidates  of  a  particular 
party,  it  is  wellnigh  impossible  for  one  to  mark  his  ballot 
properly  unless  he  is  able  both  to  read  and  write. 

The  Southern  States  are  more  lenient  in  their  educa- 
tional tests  than  other  States  in  allowing  a  person  other- 
wise qualified  to  vote  if  he  has  either  education  or  prop- 
erty; while  in  the  latter  he  must  have  a  certain  amount 
of  education  no  matter  how  much  property  he  owns. 

Educational  qualifications  easily  permit  race  distinc- 
tions in  several  ways.  In  the  first  place,  registration  offi- 
cers may  give  a  difficult  passage  of  the  Constitution  to  a 
Negro,  and  a  very  easy  passage  to  a  white  person,  or  vice 
versa.  He  may  permit  halting  reading  by  one  and  re- 

303 


SUFFRAGE 

quire  fluent  reading  by  the  other.  He  may  let  illegible 
scratching  on  paper  suffice  for  the  signature  of  one  and 
require  of  the  other  a  legible  handwriting.  But  race  dis- 
criminations in  such  cases  rest  with  the  officers;  they  do 
not  have  their  basis  in  the  law  itself. 

The  educational  clause  of  the  proposed  Maryland  suf- 
frage amendment,  recently  defeated  at  the  polls  by  the 
voters  of  that  State,  restricted  the  right  to  vote  to  a  "  per- 
son who,  in  the  presence  of  the  officers  of  registration, 
shall,  in  his  own  handwriting,  with  pen  and  ink,  without 
any  aid,  suggestion,  or  memorandum  whatever  addressed 
to  him  by  any  of  the  officers  of  registration,  make  applica- 
tion to  register  correctly,  stating  in  such  application  his 
name,  age,  date,  and  place  of  birth;  residence  and  occupa- 
tion at  the  time  and  for  the  two  years  next  preceding; 
the  name  or  names  of  his  employer  or  employers,  if  any, 
at  the  time  and  for  the  two  years  next  preceding;  and 
whether  he  has  previously  voted,  and,  if  so,  the  State, 
county,  city,  and  district,  or  precinct  in  which  he  voted 
last.  Also  the  name  in  full  of  the  President  of  the  United 
States,  of  one  of  the  Justices  of  the  Supreme  Court  of  the 
United  States,  of  the  Governor  of  Maryland,  of  one  of  the 
Judges  of  the  Court  of  Appeals  of  Maryland,  and  of  the 
Mayor  of  Baltimore  City,  if  the  applicant  resides  in  Balti- 
more City,  or  of  one  of  the  County  Commissioners  of  the 
County  in  which  the  applicant  resides."  It  is  easy  to  see 
how  race  discriminations  could  have  been  made  under  this 
proposed  amendment,  but  it  need  not  be  discussed  inas- 
much as  it  failed  to  become  law. 


304 


SOUTHERN    SUFFRAGE    AMENDMENTS    SINCE   J890 

"  Grandfather  Clauses  " 

The  "  Grandfather  Clauses  "  are,  in  a  real  sense,  pe- 
culiar to  the  Southern  States,  though  there  are  a  few 
somewhat  similar  provisions  in  other  States.  For  instance, 
Illinois,  by  its  Constitution  of  1870,  allowed  those  to  vote 
who  had  the  right  to  vote  on  April  1,  1848,  provided,  of 
course,  they  satisfied  the  age,  sex,  and  residence  qualifica- 
tions. When  Maine  added  its  educational  requirement  in 
1893,  it  provided  that  this  qualification  should  not  apply 
to  anyone  who  had  the  right  to  vote  in  January,  1893,  or 
to  anyone  sixty  years  of  age  at  that  time.  Massachusetts 
had  made  a  similar  provision  in  1857.  The  Constitution 
of  Wyoming  of  1889  had  said  that  nothing  in  it,  except 
the  provisions  about  idiots,  lunatics,  and  convicts,  should 
be  construed  to  deprive  any  one  of  the  right  to  vote  who 
had  that  right  at  the  time  of  the  adoption  of  the  Consti- 
tution. New  Hampshire  does  not  allow  paupers  to  vote, 
but  it  provides  that  one  who  served  in  the  Eebellion  and 
was  honorably  discharged  shall  not  be  disfranchised  be- 
cause he  has  received  aid  from  the  public.  In  the  Phil- 
ippines, one  unable  to  satisfy  the  educational  or  property 
test,  may,  nevertheless,  vote  if  he  held  a  substantial  office 
under  the  Spanish  regime. 

The  principle  of  the  "  Grandfather  Clause,"  in  short, 
is  that  one  who  is  not  able  to  satisfy  either  the  educational 
or  property  tests  may,  nevertheless,  continue  to  be  a  voter 
for  life  if  he  was  a  voter  in  1867  or  is  an  old  soldier  or 
the  lineal  descendant  of  such  voter  or  soldier,  provided  he 
registers  prior  to  a  fixed  date.  Alabama  permits  all  who 
served  honorably  in  the  forces  of  the  United  States  in  the 
21  305 


SUFFRAGE 

War  of  1812,  the  War  with  Mexico,  any  war  with  Indi- 
ans, the  War  between  the  States,  the  War  with  Spain,  or  in 
the  forces  of  the  Confederate  States  or  of  the  State  during 
the  War  between  the  States  and  the  lawful  descendants 
of  those  and  all  who  are  of  good  character  and  who  under- 
stand the  duties  and  obligations  of  citizens  under  a  repub- 
lican form  of  government,  to  register  before  December  20, 
1902.  The  clause  in  the  Georgia  Constitution  is  like  that 
of  Alabama,  except  that  the  privilege  is  extended  to  vet- 
erans of  the  Revolutionary  War  and  their  descendants, 
and  the  character  and  understanding  clause  is  permanent. 
To  take  advantage  of  the  "  Grandfather  Clause "  in 
Georgia  one  must  register  before  January  1,  1915.  Louisi- 
ana provided  that  one  entitled  to  vote  in  any  State  Janu- 
ary 1,  1867,  son  or  grandson  of  such  a  one  twenty-one 
years  old  or  over  in  1898,  or  a  foreigner  naturalized  be- 
fore January  1,  1898,  who  had  resided  in  the  State 
five  years  preceding  his  application  for  registration,  might 
register  before  September  1,  1898.  North  Carolina  allowed 
one  who  had  the  right  to  vote  on  January  1,  1867,  and  the 
lineal  descendant  of  such  a  one  to  be  registered  prior  to 
December  1,  1908.  Before  January  1,  1898,  one  could 
register  in  South  Carolina  who  could  read  the  Constitu- 
tion of  the  State  or  understand  and  explain  it.  In  Vir- 
ginia one  might  register  up  to  1904  who,  before  1902, 
served  in  the  army  or  navy  of  the  United  States  or  of  the 
Confederate  States  or  of  Virginia  or  who  was  the  son  of 
such  a  one,  or  who  owned  property  on  which  the  State  tax 
was  one  dollar,  or  who  was  able  to  read  and  explain  or  to 
understand  and  explain  the  Constitution  of  the  State. 
Mississippi  has  no  "  Grandfather  Clause." 

306 


SOUTHERN   SUFFRAGE   AMENDMENTS   SINCE    1890 

In  Alabama,  Georgia,  and  Virginia,  the  fact  that  one 
was  a  soldier  enabled  him  to  register  under  the  "  Grand- 
father Clause " ;  in  Louisiana  and  North  Carolina,  that 
he  was  a  voter  in  1867.  In  each  State  the  lineal  descend- 
ants of  such  soldiers  or  voters  in  1867  might  register  un- 
der the  "  Grandfather  Clause."  In  Alabama  one  might 
register,  though  he  was  not  an  old  soldier  or  descendant 
of  one,  if  he  understood  the  duties  and  obligations  of  citi- 
zenship and  was  of  good  character.  In  Virginia  and 
South  Carolina,  one  could  register  under  the  "  Grand- 
father Clause  "  if  he  could  understand  and  explain  the 
Constitution  when  read  to  him;  and,  in  Virginia,  if  he 
owned  property  taxed  as  much  as  one  dollar  a  year. 

The  "  Grandfather  Clauses  "  are  all  temporary.  Those 
classes  of  men  covered  by  the  clauses  are  given  a  certain 
time  within  which  to  have  their  names  entered  on  a  per- 
manent registry.  If  they  are  once  entered  on  the  perma- 
nent register,  they  are  voters  for  life  unless  excluded  be- 
cause of  some  crime  or  because  they  become  public  charges. 
If  they  fail,  however,  to  register  within  the  limited  time, 
and  still  wish  to  become  electors,  they  must  satisfy  the 
same  tests  as  other  applicants  for  registration.  For  in- 
stance, one  who  could  vote  in  North  Carolina  in  1867 
might  have  his  name  entered  on  the  permanent  register 
prior  to  December  1,  1908,  and  thereby  become  a  voter 
for  life,  though  he  had  neither  property  nor  literacy;  if 
he  failed  to  register  by  that  date,  he  had  to  satisfy  the 
educational  test  as  any  other  applicant  would  have  to  do. 
The  length  of  duration  of  the  "  Grandfather  Clauses " 
varies  from  a  few  months  to  several  years.  Thus,  the 
"  Grandfather  Clause "  of  South  Carolina  was  of  avail 

307 


SUFFRAGE 

from  1895  to  1898;  of  Louisiana,  from  May  16,  1898,  to 
September  1,  1898 ;  of  North  Carolina,  from  July  1,  1900, 
to  December  1,  1908;  of  Alabama,  from  1901  to  1903; 
Virginia,  from  1902  to  1904;  and  in  Georgia,  it  extends 
from  1908  to  1915.  It  will  be  seen  that  Georgia  is  the 
only  State  in  which  the  "  Grandfather  Clause  "  is  still  in 
force.  All  who  registered  within  the  dates  given  above 
are  still  electors  and  will  continue  to  be  as  long  as  they 
live  unless  excluded  from  the  suffrage  because  of  crime 
or  the  like;  those  who  have  not  registered  under  the 
"  Grandfather  Clauses "  cannot  do  so  now,  except  in 
Georgia. 

The  "  Grandfather  Clauses  "  are  more  nearly  race  dis- 
tinctions than  any  other  sections  of  the  suffrage  laws  for 
the  reason  that  so  many  white  men  in  the  Southern  States 
and  so  few  Negroes  are  either  old  soldiers  or  descendants 
of  old  soldiers  or  had  the  right  to  vote  in  1867.  Yet  they 
are  not,  technically  speaking,  race  distinctions  because,  if 
one  was  a  veteran  or  son  of  one,  he  might  register  regard- 
less of  his  race  or  color.  As  a  matter  of  fact,  a  consid- 
erable number  of  Negroes  in  the  Southern  States,  who 
were  Federal  soldiers  in  the  Civil  War,  have  registered 
under  the  "  Grandfather  Clauses." 

"  Understanding  and  Character  Clauses " 

The  "  Understanding  Clauses "  do  not  have  as  large 
a  place  in  .the  suffrage  laws  of  the  Southern  States  as  is 
commonly  believed.  In  only  two  States — Georgia  and 
Mississippi — is  the  "  Understanding  Clause  "  permanent. 
In  Georgia,  one  may  register  if  he  is  of  good  character  and 
understands  the  duties  and  obligations  of  citizens  under 

308 


SOUTHERN    SUFFRAGE    AMENDMENTS   SINCE    1890 

a  republican  form  of  government,  although  he  has  neither 
education  nor  property.  In  Mississippi,  one  who  cannot 
read  may  register  if  he  can  understand  and  reasonably  in- 
terpret the  Constitution  when  read  to  him.  A  distinc- 
tion must  be  made  between  these  two  "  Understanding 
Clauses."  In  Georgia  the  requirement  is  the  understand- 
ing of  the  duties  of  citizens  of  a  republican  form  of  gov- 
ernment; in  Mississippi  it  is  understanding  the  State  Con- 
stitution when  read.  In  three  other  States — Alabama,  South 
Carolina,  and  Virginia — the  "  Understanding  Clause  "  of 
the  Mississippi  type  is  part  of  the  "  Grandfather  "  section, 
and  became  inoperative  with  the  "  Grandfather  Clauses." 
The  Georgia  provision  which  allows  one  to  register,  re- 
gardless of  education  or  property,  if  he  is  of  good  moral 
character  has  a  prototype  in  the  Constitutions  of  Con- 
necticut which  requires  all  electors  to  be  of  good  moral 
character,  and  the  Constitution  of  Vermont  which  re- 
quires the  electors  to  be  of  quiet  and  peaceable  behavior. 
It  cannot  be  doubted  that  the  permanent  "Under- 
standing Clauses  "  of  Mississippi  and  Georgia  lend  them- 
selves to  race  discrimination.  The  Constitution  of  Mis- 
sissippi provides  that  the  applicant  for  registration  must 
be  able  either  to  read  or  understand  and  reasonably  in- 
terpret the  Constitution.  The  registrar  who  so  desires 
may  easily  disqualify  members  of  one  race  by  asking  them 
to  explain  more  difficult  passages  of  the  Constitution  or 
by  requiring  of  them  a  more  scholarly  interpretation  of 
such  passages  than  he  demands  of  members  of  the  other 
race  whom  he  desires  to  have  qualify  as  electors.  In 
Georgia  the  registrar  who  passes  upon  an  applicant's  un- 
derstanding of  the  duties  and  obligations  of  citizens  under 

309 


SUFFRAGE 

a  republican  form  of  government  may  set  a  higher  stand- 
ard for  one  race  than  for  the  other. 

Persons  Excluded  from  Suffrage 

Certain  classes  of  persons  are  excluded  from  the  fran- 
chise because  they  are  considered  incapable  or  unfit  to  take 
a  hand  in  governmental  matters.  The  classes  excluded 
are  practically  the  same  in  all  the  States,  and  there  is 
slight  evidence  of  any  race  distinction  in  such  cases.  The 
following  States  do  not  allow  paupers  to  vote:  Delaware, 
Maine,  Massachusetts,  New  Hampshire,  New  Jersey, 
Ehode  Island,  South  Carolina,  Texas,  Virginia,  and  West 
Virginia.  Other  States,  including  Louisiana,  Missouri, 
Montana,  Oklahoma,  and  South  Carolina,  exclude  the  in- 
mates of  public  institutions  of  charity,  Louisiana  and  Ok- 
lahoma making  an  exception  of  Soldiers'  Homes.  Prac- 
tically all  the  States  exclude  idiots  and  insane  persons 
from  the  suffrage.  Other  classes,  though  not  excluded 
from  the  suffrage,  are  not  allowed  to  get  the  required 
residence  to  become  electors.  Thus,  in  a  number  of  States, 
students  in  schools,  unless  self-supporting,  do  not  get  the 
required  residence  by  living  at  the  school.  In  a  great 
majority  of  the  States,  soldiers  and  sailors  in  service  do  not 
gain  an  electoral  residence  in  a  State,  county,  or  precinct 
by  being  stationed  therein.  California,  Idaho,  Nevada, 
and  Oregon  exclude  all  but  American-born  Chinese. 
Where  the  Chinese,  because  of  the  Federal  naturalization 
laws,  are  incapable  of  becoming  citizens,  they  cannot  be 
electors,  because  all  the  States  require  the  electors  to  be 
either  citizens  or  persons  who  have  formally  declared 
their  intention  to  become  citizens.  Idaho,  Maine,  Michi- 

310 


SOUTHERN    SUFFRAGE    AMENDMENTS    SINCE    1890 

gan,  Minnesota,  Mississippi,  North  Dakota,  Oklahoma, 
Washington,  and  Wisconsin  exclude  tribal  Indians,  or, 
what  is  perhaps  the  same,  Indians  not  taxed. 

All  States  exclude  from  the  suffrage  those  who  have 
been  convicted  of  certain  crimes;  that  is,  those  who  may 
have  served  out  their  terms  of  imprisonment,  but  who 
have  not  been  restored  to  their  civil  rights  by  the  execu- 
tive department  of  the  State.  Treason  and  felonies  like 
embezzlement  and  bribery  are  the  crimes  most  frequently 
mentioned.  One  finds  here  a  possible  race  distinction. 
The  Southern  States  have  greatly  added  to  the  list  of 
crimes  which  operate  as  an  exclusion  from  the  suffrage. 
By  the  Constitution  of  Alabama  of  1875,  for  instance,  the 
following  were  excluded  from  suffrage :  Those  convicted 
of  treason,  embezzlement  of  public  funds,  malfeasance  in 
office,  larceny,  bribery,  or  ony  other  crime  punishable  by 
imprisonment  in  the  penitentiary.  The  last  Constitution 
of  Alabama  is  more  specific;  it  mentions  the  following 
crimes  as  having  the  effect  of  excluding  from  the  suffrage 
those  convicted  of  them:  Treason,  murder,  arson,  embez- 
zlement, malfeasance  in  office,  larceny,  receiving  stolen 
property,  obtaining  property  or  money  under  false  pre- 
tenses, perjury,  subornation  of  perjury,  robbery,  assault 
with  intent  to  rob,  burglary,  forgery,  bribery,  assault  and 
battery  on  wife,  bigamy,  living  in  adultery,  sodomy,  in- 
cest, rape,  miscegenation,  crime  against  nature,  or  any 
crime  punishable  by  imprisonment  in  the  penitentiary, 
or  of  any  infamous  crime  or  crimes  involving  moral  turpi- 
tude; also  any  person  who  shall  be  convicted  as  a  vagrant 
or  tramp,  or  of  selling  or  offering  to  sell  his  vote  or  the 
vote  of  another,  or  of  making  or  offering  to  make  false 

311 


SUFFRAGE 

return  in  any  election  by  the  people  or  in  any  primary 
election  to  procure  the  nomination  or  election  of  any 
person  to  any  office,  or  of  suborning  any  witness  or  regis- 
trar to  secure  the  registration  of  any  person  as  an  elector. 
Delaware  and  several  other  States,  on  the  other  hand, 
exclude  only  those  who  have  been  convicted  of  a  felony. 
If,  as  the  Supreme  Court  of  Mississippi  said,  the  Negro 
is  more  given  to  furtive  offences  than  to  the  robust  crimes 
of  the  whites,  the  exclusions  of  the  Alabama  law  would 
seem  to  be  directed  toward  these  offences.  If  more  Ne- 
groes than  whites  are  guilty  of  such  crimes  as  larceny  and 
wife-beating,  and  of  sexual  irregularities,  then  the  law 
operates  to  disqualify  for  the  suffrage  more  Negroes  than 
whites. 

SUFFRAGE  IN  INSULAR  POSSESSIONS  OF  UNITED  STATES 

The  suffrage  qualifications  in  the  insular  possessions 
of  the  United  States  are  particularly  significant  in  that 
they  tend  to  show  the  present  attitude  of  CongreSs  toward 
the  elective  franchise.  The  Act  of  April  30,  1900,  provid- 
ing a  government  for  the  Territory  of  Hawaii,  restricts 
suffrage  to  those  who  can  speak,  read,  and  write  the  Eng- 
lish or  Hawaiian  language — a  strict  educational  test.  In 
the  Philippines  to  be  an  elector  one  must  be  a  native  of 
the  Philippines,  twenty-three  years  of  age  or  over,  and 
must  have  paid  an  annual  tax  of  fifteen  dollars,  or  be  the 
owner  of  property  assessed  at  two  hundred  and  fifty  dol- 
lars, or  be  able  to  speak,  read,  and  write  English  or  Span- 
ish, or  have  held  substantial  office  under  the  Spanish 
regime.  It  will  be  noticed  that  the  tax  payment,  educa- 
tional, property,  and  office-holding  tests  are  alternatives, 

312 


•  CONSTITUTIONALITY    OF   SUFFKAGE   AMENDMENTS 

so  the  satisfaction  of  any  one  of  the  four  is  sufficient. 
Manhood  suffrage,  as  provided  by  the  "  Foraker  Act "  6S 
of  1900,  is  still  in  force  in  Porto  Rico.  But  this  seems 
destined  soon  to  give  way  to  a  restricted  suffrage.  Secre- 
tary of  War  Dickinson  has  recently  issued  a  report  on  the 
conditions  in  Porto  Eico  in  which  Jie  suggests  an  amend- 
ment of  the  suffrage  laws  to  the  effect  that,  after  the  gen- 
eral election  of  1910,  the  qualified  voters  for  any  election 
shall  consist  only  of  citizens  of  the  United  States,  who, 
with  such  other  qualifications  as  are  required  by  the  laws 
of  Porto  Eico,  "  are  able  to  read  and  write ;  or  on  the 
day  of  registration  shall  own  taxable  real  estate  in  their 
own  right  and  name;  or  who  are  on  said  day  bona  fide 
members  of  a  firm  or  corporation  which  shall  own  taxable 
real  estate  in  the  name  of  such  firm  or  corporation;  or 
on  the  day  of  registration  shall  possess  and  produce  to 
the  Board  of  Eegistration  tax  receipts  showing  the  pay- 
ment of  any  kind  of  taxes  for  the  last  six  months  of  the 
year  in  which  the  election  is  held."  President  Taft,  in 
transmitting  the  report  to  Congress,  indorsed  Secretary 
Dickinson's  suggestions,  saying 63 :  "  It  is  much  better  in 
the  interests  of  the  people  of  the  island  that  the  suffrage 
should  be  limited  by  an  educational  and  property  qualifi- 
cation." The  above  suffrage  qualifications  for  the  insular 
possessions  of  the  United  States  is  evidence  that  the  atti- 
tude of  Congress  toward  universal  suffrage  has  been  con- 
siderably modified  within  recent  years. 

CONSTITUTIONALITY   OF    SUFFRAGE   AMENDMENTS 

The   first  "  Suffrage  Amendment "   of  the   Southern 
States,  that  of  Mississippi,  was  adopted  twenty  years  ago, 

313 


SUFFRAGE 

and  yet  no  case  involving  the  constitutionality  of  these 
laws  has  been  squarely  presented  to  the  Supreme  Court 
of  the  United  States.  The  one  most  nearly  in  point  was 
Williams  v.  Mississippi 64  in  1898.  Williams,  a  Negro, 
had  been  indicted  by  a  jury  composed  wholly  of  white  men. 
The  law  required  that  a  juror  should  be  an  elector.  Wil- 
liams contended  that  the  provisions  of  the  Constitution 
about  suffrage  were  a  scheme  to  discriminate  against  Ne- 
groes, that  the  discrimination  was  effected,  not  by  the 
wording  of  the  law,  but  by  the  powers  vested  in  the  admin- 
trative  officers.  The  United  States  Supreme  Court  re- 
fused to  interfere,  saying  that  the  laws  did  not,  on  their 
face,  discriminate  against  the  races,  and  that  it  "  had  not 
been  shown  that  their  actual  administration  was  evil,  only 
that  evil  was  possible  under  them." 

Several  suits 65  have  been  brought,  the  purpose  of 
which  has  been  to  test  the  constitutionality  of  these  laws, 
but  they  have  all  been  decided  on  points  of  procedure  or 
on  technical  grounds. 

At  present,  the  suffrage  laws  of  the  Southern  States 
stand  judicially  unimpugned  in  the  light  of  the  Fifteenth 
Amendment.  Mr.  John  Mabry  Mathews 86  says  that 
the  Supreme  Court  has  shown  an  "  apparent  desire  to 
shift  the  duty  of  redressing  such  wrongs  [those  arising 
under  the  suffrage  laws]  upon  the  political  department  of 
the  Government.  So  far  as  Congress  has  given  any  indi- 
cation of  its  attitude  upon  the  subject,  it  has  intimated 
that  the  matter  is  one  for  judicial  settlement.  But  the 
absence  of  congressional  legislation  would  in  any  case 
hamper  the  efficiency  of  the  courts  in  securing  the  prac- 
tical enforcement  of  the  Amendment.  The  real  reason 

314 


CONSTITUTIONALITY    OF    SUFFRAGE    AMENDMENTS 

behind  the  attitude  of  both  Congress  and  the  courts  is  the 
apathetic  tone  of  public  opinion,  which  is  the  final  arbiter 
of  the  question.  In  the  technical  sense,  the  Amendment 
is  still  a  part  of  the  supreme  law  of  the  land.  But  as  a 
phenomenon  of  the  social  consciousness,  a  rule  of  conduct, 
no  matter  how  authoritatively  promulgated  by  the  nation, 
if  not  supported  by  the  force  of  public  opinion,  is  already 
in  process  of  repeal/' 

It  cannot  be  safely  conjectured  what  the  Supreme 
Court  will  say  when  it  squarely  faces  the  suffrage  laws  of 
the  South  in  their  relation  to  the  Fifteenth  Amendment. 
Until  then,  each  is  entitled  to  his  opinion.  That  the  citi- 
zenship, age,  sex,  and  residence  qualifications  are  in  per- 
fect conformity  to  the  Amendment  there  is  no  doubt.  The 
qualifications  of  tax  payment,  property,  and  education 
existed  long  before  the  Fifteenth  Amendment  in  the 
States  of  the  men  most  active  in  securing  the  adoption  of 
that  Amendment.  It  is  hardly  to  be  supposed  that  the 
Senators  and  Eepresentatives  from  Massachusetts  and 
Pennsylvania  understood  the  Amendment  they  were  advo- 
cating to  be  nullifying  the  suffrage  laws  of  their  respective 
States.  Moreover,  a  property  or  educational  test  is  not  an 
abridgment  or  denial  of  the  right  to  vote,  because  it  lies 
within  the  power  of  everyone,  regardless  of  race,  to  accu- 
mulate property  and  acquire  literacy. 

The  "  Grandfather  Clauses "  are  the  most  doubtful 
parts  of  the  suffrage  laws.  In  one  sense,  they  are  not  at 
all  a  denial  or  an  abridgment  of  the  right  to  vote.  Grant- 
ing that  the  property  and  educational  tests  are  constitu- 
tional, the  "  Grandfather  Clause,"  instead  of  abridging  or 
denying,  enlarges  the  right  to  vote  by  giving  the  suffrage 

315 


SUFFRAGE 

to  those  who  would  be  disqualified  under  the  property  or 
educational  tests.  Be  that  as  it  may,  the  Southern  States 
are  more  uneasy  about  the  constitutionality  of  these  provi- 
sions than  of  any  others.  For  instance,  at  the  last  two 
sessions  of  the  legislature  of  North  Carolina  bills  were 
introduced  to  extend  the  "  Grandfather  Clause  "  of  that 
State  to  1812  and  1816  respectively.  In  each  case  the  bill 
was  defeated,  the  argument  against  it  being  that  it  was 
unwise  to  open  up  the  suffrage  question  again,  lest  the 
amendment  be  brought  into  court.67 

A  leading  thinker  on  constitutional  law  has  given  the 
unpublished  opinion  that  the  "  Grandfather  Clauses  "  are 
in  violation  of  the  tenth  section  of  the  first  article  of  the 
Constitution  of  the  United  States,  which  says  that  no  State 
shall  grant  any  title  of  nobility.  His  idea  is  that  an  order 
of  nobility  is  created  whenever  a  class  of  persons  is 
granted  exceptional  political  privileges,  that  the  old  sol- 
diers and  lineal  descendants  constitute  such  a  class,  and 
that  the  title  of  nobility  is  "  Elector,"  whether  expressed 
or  not. 

If  the  "  Grandfather  Clause  "  should  be  declared  un- 
constitutional on  the  ground  just  suggested  or  on  any 
other  ground,  the  next  question  would  be  whether  that 
would  nullify  the  other  sections  of  the  suffrage  laws,  such 
as  the  educational  and  property  tests.  This  depends  upon 
whether  the  different  sections  of  the  laws  are  separable, 
whether  the  legislature  or  the  people  would  have  adopted 
the  educational  and  property  tests,  etc.,  if  they  had  thought 
the  "  Grandfather  Clause  "  unenforceable.68  North  Caro- 
lina prepared  for  just  such  a  contingency  by  inserting  the 
following  section  in  its  Suffrage  Amendment :  "  That  this 

316 


MARYLAND   AND   FIFTEENTH   AMENDMENT 

amendment  to  the  Constitution  is  presented  and  adopted 
as  one  indivisible  plan  for  the  regulation  of  the  suffrage, 
with  the  intent  and  purpose  to  so  connect  the  different 
parts,  and  to  make  them  so  dependent  upon  each  other 
that  the  whole  shall  stand  or  fall  together." 

MARYLAND   AND   FIFTEENTH    AMENDMENT 

In  the  preceding  section  it  has  been  assumed  that  the 
Fifteenth  Amendment  is  an  integral  part  of  the  Constitu- 
tion of  the  United  States.  Whether  or  not  this  assumption 
is  warranted  is  brought  into  question  by  a  recent  action  of 
the  legislature  of  Maryland. 

As  has  been  said  earlier  in  this  chapter,  Maryland  has 
made  two  unsuccessful  attempts  to  amend  its  suffrage  laws 
in  such  a  way  as  would  disfranchise  a  large  number  of  the 
present  Negro  voters  in  that  State.  The  letter  of  the 
Constitution  of  Maryland  at  present  restricts  suffrage  to 
white  male  citizens ;  but  it  has  been  taken  for  granted  that 
the  word  "  white  "  became  inoperative  under  the  Fifteenth 
Amendment. 

Out  of  the  discussion  of  Negro  suffrage  in  Maryland 
has  arisen  the  question  whether  or  not  the  Fifteentli 
Amendment  itself  is  valid.  At  the  last  session  of  the 
legislature  of  that  State,  that  of  1910,  the  so-called  Digges 
Bills  were  introduced  and  passed  by  both  houses.  The 
purpose  of  these  bills  was  to  disfranchise  all  Negroes  who 
have  not  owned  five  hundred  dollars'  worth  of  property  for 
two  years  before  their  application  for  registration,  upon 
which  all  taxes  have  been  paid  during  those  two  years. 
This  disfranchisement  applied  only  to  State  and  municipal 

317 


SUFFRAGE 

elections.  The  bills  failed  to  become  laws  only  because 
they  were  vetoed  by  the  Governor  of  the  State. 

Upon  the  failure  of  the  Digges  Bills  to  be  passed,  a 
constitutional  amendment 69  was  drafted  and  approved  by 
the  required  three-fifths  of  all  the  members  of  both  houses 
of  the  legislature,  which  embodied  the  same  features  as 
the  Digges  Bills.  This  amendment  is  to  be  voted  upon  by 
the  people  at  the  general  election  in  November,  1911. 
This  amendment  provides  for  the  Australian  ballot  and 
for  uniform  election  laws  throughout  the  State.  In  the 
event  of  the  amendment  being  declared  unconstitutional, 
the  laws  now  in  force  in  Maryland  are  to  be  revived 
automatically. 

The  validity  of  the  proposed  Maryland  amendment  is 
directly  dependent  upon  the  invalidity  of  the  Fifteenth 
Amendment.  Under  the  proposed  amendment,  no  prop- 
erty qualification  whatever  is  required  of  white  male  citi- 
zens applying  for  registration,  while  a  heavy  property 
qualification  is  required  of  every  other  male  citizen — and 
this  must  include  Negroes — applying  for  registration. 
Thus,  in  violation  of  the  Fifteenth  Amendment,  the  right 
of  citizens  of  the  United  States  to  vote  would  be  denied  or 
abridged  by  the  State  of  Maryland  on  account  of  race  or 
color. 

The  validity  of  the  Fifteenth  Amendment  is  questioned 
on  the  following  grounds,  among  others:  (1)  The  fifth 
article  of  the  Federal  Constitution  provides  that  Congress, 
"whenever  two-thirds  of  both  houses  shall  deem  it  neces- 
sary," shall  propose  amendments  to  the  Constitution.  It 
is  claimed  that  only  thirty-nine  of  the  sixty-six  members 
of  the  Senate,  less  than  two-thirds,  voted  to  submit  the 

318 


MARYLAND   AND   FIFTEENTH   AMENDMENT 

Fifteenth  Amendment  to  the  States  for  their  ratification. 
(2)  Maryland  was  one  of  the  two  States — the  other  being 
Delaware — that  refused  to  ratify  either  the  Thirteenth, 
Fourteenth  or  Fifteenth  Amendment.  It  is  claimed, 
therefore,  that  Maryland  is  not  bound  by  the  Fifteenth 
Amendment,  which  it  did  not  ratify.  (3)  The  fifth 
article  of  the  Constitution,  after  providing  the  two  ways 
in  which  the  Constitution  may  be  amended,  adds  that  "  no 
State,  without  its  consent,  shall  be  deprived  of  its  equal 
suffrage  in  the  Senate."  Upon  this  last  clause,  Mr. 
Arthur  W.  Machen,  Jr.,  in  a  recent  article  in  The  Harvard 
Law  Review,10  has  founded  an  ingenious  argument  that 
the  Fifteenth  Amendment  is  void.  His  reasoning  on  this 
point  is,  in  brief,  that  the  State  meant  here  is  the  citizens 
or  voters  or  the  government  of  the  State,  and  not  the 
territory.  By  the  enfranchisement  of  the  Negroes  after  the 
War,  the  composition  of  the  State  was  changed,  a  body  of 
persons  became  part  of  the  State  who  were  not  a  part  of 
it  before,  and  thus  the  State  was  deprived  of  its  equal 
suffrage  in  the  Senate.  Mr.  Machen  says :  "  The  Fifteenth 
Amendment  amounts  to  a  compulsory  annexation  to  each 
State  that  refused  to  ratify  it  of  a  black  San  Domingo 
within  its  borders.  It  is  no  less  objectionable  than  the 
annexation  of  the  San  Domingo  in  the  Spanish  main." 

Whether  or  not  any  or  all  of  the  above  objections  and 
the  others  that  are  urged  against  the  Fifteenth  Amend- 
ment are  valid  cannot  now  be  answered,  because  the  valid- 
ity of  the  Amendment  has  been  assumed  by  the  courts 
rather  than  decided  upon  after  argument.  Until  after  the 
election  of  November,  1911,  attention  will  be  centered 
upon  Maryland.  If  the  proposed  amendment  to  the  State 

319 


SUFFRAGE 

Constitution  is  ratified  by  the  people,  then  haste  will  no 
doubt  be  made  to  have  its  constitutionality  tested,  in  which 
case  the  validity  of  the  Fifteenth  Amendment  will  be 
directly  raised.  The  Southern  States,  as  a  rule,  deplore 
this  action  on  the  part  of  Maryland  because  they  fear  that 
it  will  open  up  the  whole  suffrage  question.  It  is  deplored 
by  people  over  the  country  as  a  whole  because  they  fear 
that  it  will  revive  the  ill  feeling  among  the  sections  oc- 
casioned by  Reconstruction. 

EXTENT   OF   ACTUAL   DISFRANCHISEMENT 

It  is  imposible  to  say  how  many  persons  have  been 
disfranchised  under  the  suffrage  laws.  No  doubt  many 
who  are  capable  of  satisfying  the  qualifications  do  not 
register,  or,  if  they  register,  do  not  vote.  This  is  probably 
due  to  the  one-party  system  in  the  South.  The  following 
figures  show  either  the  extent  of  actual  disfranchisement 
or  the  political  apathy  in  the  Southern  States:  In  one 
county  in  Mississippi,  with  a  population  of  about  8,000 
whites  and  11,700  Negroes  in  1900,  there  were  only  twen- 
ty-five or  thirty  qualified  Negro  voters  in  1908,  the  rest 
being  disqualified,  it  is  said,  on  the  educational  test.  In 
another  county,  with  30,000  Negroes,  only  about  175  were 
registered  voters.  In  still  another  county  of  Mississippi, 
with  8,000  whites  and  12,000  Negroes,  only  400  white  men 
and  about  30  Negroes  are  qualified  electors.  The  clerk  of 
court  of  H  county  in  North  Carolina,  with  a  population  of 
5,700  whites  and  6,700  Negroes,  writes  that  a  Negro  has 
never  voted  in  the  County.  As  a  general  rule,  taking  the 
country  at  large,  about  one  person  in  five  is  a  male  of  vot- 
ing age.  In  Iowa  four  out  of  five  possible  voters  have 

320 


EXTENT    OF   ACTUAL   DISFRANCHISEMENT 

actually  voted  in  the  last  four  elections;  in  Georgia,  a 
State  of  nearly  the  same  population,  the  proportion  is 
one  to  six.  In  Mississippi,  in  1906,  only  one  out  of 
eighteen  males  of  voting  age  actually  voted;  in  Georgia, 
one  out  of  fifteen.  In  a  district  in  Mississippi  with  a 
population  of  190,885,  2,091  votes  were  cast  for  the  Eep- 
resentative,  John  Sharp  Williams,  in  1906;  in  a  district 
in  Connecticut  with  a  population  of  247,875,  46,425  votes 
were  cast  for  Representative  Litchfield.  These  figures 
show  that  the  ratio  of  actual  voters  to  total  population  in 
the  Southern  States  is  astoundingly  smaller  than  in  other 
States.71 


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339 

SUFFRAGE 


NOTES 

1  The  following  table,  giving  the  dates  of  the  Constitu- 
tions of  the  various  States  and  the  Organic  Laws  of  the  Ter- 
ritories with  the  sections  referring  to  suffrage,  up  to  and 
including  1865,  indicates  the  extent  to  which  suffrage  was 
restricted  to  white  people  before  and  at  that  date.  "  White," 
"  white  freeman,"  "  free  white,"  etc.,  mean  that  only  white 
persons  or  white  freemen  or  free  white  persons  had  the 
elective  franchise.  Where  the  suffrage  is  given  to  male 
"  citizens  "  or  "  inhabitants  "  whether  Negroes  were  included 
depends  upon  whether  they  were  treated  in  those  States  as 
"  citizens  "  or  "  inhabitants." 


Alabama, 

Const., 

1819,  art. 

III,  sec. 

5. 

.White. 

" 

1865,    " 

VIII,    " 

1. 

" 

Arkansas, 

" 

1836,    " 

IV,    " 

2. 

.  Free  white. 

it 

1864,    " 

IV,    " 

2. 

it         it 

California, 

" 

1849,    " 

II,    " 

2. 

.White. 

Colorado, 

Ter.  Govt., 

1861, 

" 

5. 

.  Free  white. 

Connecticut, 

Const., 

1818,    " 

VI,    " 

2. 

.White. 

Amend., 

1845,    " 

VIII, 

" 

Delaware, 

Const., 

1792,    " 

IV,    " 

1. 

.  Free  white. 

a 

1831,    " 

IV,    " 

1. 

.     "        " 

Florida, 

Ter.  Govt., 

1822, 

(( 

11. 

"        " 

Const., 

1838,    " 

VI,    " 

1. 

.    "        " 

" 

1865,    " 

VI,    « 

1. 

it        tt 

Georgia, 

" 

1777,    " 

IX, 

.White. 

" 

1789,    " 

IV,    « 

1. 

.  Citizens  and  in- 

habitants. 

« 

1798,    " 

IV,    " 

1. 

.  Citizens  and  in- 

habitants. 

« 

1865,    " 

V,    « 

1. 

.  Free  white. 

Illinois, 

" 

1818,    " 

II,  " 

27. 

.  White. 

" 

1848,    " 

VI,    " 

1. 

" 

Indiana, 

" 

1816,    " 

VI,    " 

1. 

" 

" 

1851,    " 

II,  " 

2. 

" 

340 


NOTES 


Iowa, 

Ter.  Govt., 

1838, 

sec.    5 

.  .  Free  white. 

Const., 

1846, 

art. 

,     II, 

"      1 

..White. 

" 

1857, 

n 

II, 

"      1 

tt 

Kansas, 

Ter.  Govt., 

1854, 

"     5 

.  .  Free  white. 

Const., 

1855, 

u 

II, 

"     2 

..White. 

" 

1857, 

ii 

VIII, 

"      1 

.  .Citizens. 

u 

1858, 

n 

II, 

"      1 

tt 

n 

1859, 

n 

v, 

"      1 

..White. 

Kentucky, 

" 

1792, 

n 

III, 

.  .  Free  citizens. 

n 

1799, 

u 

II, 

"     8 

.  .     "        " 

H 

1850, 

it 

II, 

"      8 

.  .  Free  white. 

Louisiana, 

n 

1812, 

u 

II, 

"      8 

.  .     "        " 

n 

1845, 

tit. 

II, 

art.  10 

a        n 

u 

1852, 

" 

n, 

"    10 

11                  U 

ti 

1864, 

" 

in, 

"    14 

.  .  White. 

Maine, 

11 

1820, 

art. 

ii, 

sec.    1 

.  .  Citizens. 

Maryland, 

it 

1776, 

" 

ii, 

.  .  Free  men. 

Amend., 

1810, 

a 

XIV, 

.  .  Free  white. 

Const., 

1851, 

" 

i, 

"      1 

u        a 

" 

1864, 

11 

i, 

"      1 

.  .  White. 

Massachusetts, 

1780, 

chap.     I, 

art.    4 

.  .  Freeholders. 

Amend., 

1822, 

art. 

in, 

.  Citizens. 

Michigan, 

Const., 

1835, 

" 

ii, 

sec.    1 

..White. 

" 

1850, 

" 

VII, 

"      1 

n 

Minnesota, 

Ter.  Govt., 

1849, 

"    5.. 

Free  white. 

Const., 

1857, 

" 

VII, 

"      1. 

.White. 

Mississippi, 

Ter.  Govt., 

1808, 

"      1. 

.  Free  white. 

Const., 

1817, 

" 

III, 

"      1. 

.    "        " 

" 

1832, 

" 

III, 

"      1. 

ii        it 

Missouri, 

Ter.  Govt., 

1812, 

"    11. 

tt        tt 

Const., 

1820, 

" 

III, 

"    10. 

tt        ti 

" 

1865, 

" 

II, 

"    18. 

.  White. 

Nevada, 

Ter.  Govt., 

1850, 

"      5. 

.  Free  white. 

it        n 

1861, 

"     5. 

it        it 

Const., 

1864, 

" 

II, 

"      1. 

.  White. 

New  Hampshire,       " 

1784, 

part 

II, 

.  Inhabitants. 

" 

1792, 

" 

II, 

"    28. 

n 

New  Jersey, 

" 

1776, 

art. 

IV, 

" 

" 

1844, 

" 

II, 

"      1. 

.White. 

New  York, 

" 

1777, 

" 

VII, 

.  Inhabitants. 

341 

SUFFRAGE 


New  York,  Const.,     1821,  art.      II,  sec.     1 . 

1846,    "        II,    "      1. 


.  Citizens. 


North  Carolina,        " 

1776, 

"      VII, 

a 

.  Freemen. 

Amend., 

1835, 

I, 

"     3. 

(N  e  - 

groes  excepted). 

it 

1854, 

.  Free  white. 

Ohio,                     Const., 

1802, 

"       IV, 

"      1. 

.White. 

" 

1851, 

v, 

"      1. 

it 

Oregon,             Ter.  Govt., 

1848, 

"      5. 

" 

Const., 

1857, 

"     II, 

"      2. 

"     (Negroes 

excepted). 

Pennsylvania, 

1776, 

"     II, 

"      6. 

.  Freemen. 

" 

1790, 

"    III, 

"      1. 

ti 

" 

1838, 

"    III, 

"      1. 

.White  freemen. 

Rhode  Island, 

1842, 

"     II, 

"      1- 

.  Citizens. 

South  Carolina,         " 

1776, 

res.     XI, 

.  "As  required  by 

law." 

" 

1778, 

"   XIII, 

« 

.Free  white. 

" 

1790, 

art.        I, 

"      4. 

.    "        " 

Amend., 

1810, 

.    "        " 

Tennessee,            Const., 

1796, 

"       III, 

"      1. 

.  Freemen. 

" 

1834, 

"       IV, 

"      1. 

.  Free  white. 

Texas,                        " 

1836, 

"       VI, 

"    11. 

.  Citizens. 

tt 

1845, 

"     III, 

.  Free     (Negroes 

excepted). 

Vermont,                  " 

1777,  chap.    II, 

"     6. 

.  Men     of    quiet 

and      peace- 

able  behavior. 

" 

1786, 

I, 

"      9. 

.  Men    of    quiet 

and      peace- 

ablebehavior. 

ti 

1793, 

"     II, 

"    21. 

.  Men    of    quiet 

and      peace- 

ablebehavior. 

Virginia, 

1830, 

art.     Ill, 

"    14. 

.White. 

" 

1850, 

"       III, 

"      1. 

it 

it 

1864, 

"       III, 

"      1. 

" 

West  Virginia,           "    1861-S3, 

"       III, 

"      1. 

" 

Wisconsin,        Ter.  Govt., 

1836, 

"      5. 

.  Free  white. 

Const., 

1848, 

"       III, 

"      1. 

.White. 

342 

NOTES 

2  Art.  II,  sec.  2. 

3  Art.  VII,  sec.  1. 

4  Const.,  1799,  art.  III. 

5  Const,  1845,  art.  III. 

6  Art.  II,  sec.  1. 

7  Art.  Ill,  sec.  1. 

8  B.  P.  Poore :  "  Charters  and  Constitutions,"  II,  p.  1353. 

9  Amends,  to  Const,  of  1776,  art.  I,  sec.  3,  par.  3. 

10  Congressional   Record,  vol.   33,  part   8,  app.   pp.   297, 
et  seq. 

11  Art.  IV,  sec.  1. 

12  Art.  Ill,  sec.  1. 

13Gillespie  v.  Palmer,  1866,  20  Wis.  544;  Laws  of  Wis. 
1849,  p.  85. 

14  Albert  Bushnell  Hart :  a  Slavery  and  Abolition,"  p.  83 ; 
"  The  Realities  of  Negro  Suffrage  "  in  the  Proceedings  of  the 
American  Political  Science  Association  for  1906. 

15  Ala.,  1867,  art.  VII,  sec.  1 ;  Ark,  1868,  art.  VIII,  sec.  2 ; 
Fla.,  1868,  art.  XV,  sec.  1;  Ga.,  1868,  art.  II,  sec.  2;  La., 
1868,  tit.  VI,  art.  98;  Miss.,  1868,  art.  VII,  sec.  2;  N.  C., 
1868,  art.  VI,  sec.  1;  S.  C.  1868,  art.  VIII,  sec.  1;  and  Texas, 
1868,  art.  Ill,  sec.  1. 

18  Art.  Ill,  sec.  1. 

17  Art.  II,  sec.  2. 

18  B.  P.  Poore :  "  Charters  and  Constitutions,"  II,  p.  1353. 

19  Laws  of  Colo.,  1861,  pp.  71-72. 

20  Hid.,  1864,  pp.  79-80. 

21  Pub.  Acts  of  Conn.,  1865,  pp.  94-95. 

22  Laws  of  Minn.,  1865,  pp.  118-19. 

23  Laws  of  Wis.,  1865,  pp.  517-18. 

24  Congressional  Record,  vol.  35,  part  2,  pp.  1270  et  seq. 

25  Laws  of  la.,  1868,  pp.  290-91. 

26  Art.  VII. 

343 


SUFFRAGE 

27  Laws  of  Dak.  Ty.,  1867-68,  p.  255. 

28  Congressional  Record,  vol.  35,  part  2,  pp.  1270  et  seq. 

29  Art.  VII,  sec.  1. 

30  Amend.,  1870,  art   II,  sec.  1. 
81  Art.  HI,  sec.  1. 

32  Const.,  1867,  art.  I,  sec.  1. 

33  Neal  v.  Del,  1880,  103  TJ.  S.  370. 

34  Laws  of  Ore.,  1870,  pp.  190-91. 

35  Laws  of  N.  Y.,  1870,  I,  p.  922. 

36  16  Stat.  L.,  140-46,  chap.  94. 

37  U.  S.  v.  Reese,  1875,  92  U.  S.  214. 

38  U.  S.  v.  Canter,  1870,  Fed.  Case  No.  14,719. 

39  U.  S.  v.  Crosby,  1871,  Fed.  Case  No.  14,893. 

40  Anthony  v.  Halderman,  1871,  7  Kan.  50. 

41  Kellog  v.  Warmouth,  1872,  Fed.  Case  No.  7,667. 

42  U.  S.  v.  Given,  1873,  Fed.  Case  Nos.  15,210  and  15,211. 

43  U.  S.  v.  Cruikshank,  1874,  Fed.  Case  No.  14,897;  92 
U.  S.  542  (1875). 

44  U.  S.  v.  Petersburg  (Va.)  Judges  of  Election,  1874,  Fed. 
Case  No.  16,036. 

45  Bernier  v.  Russell,  1878,  89  111.  60. 

46  Ex  parte  Yarborough,  1884,  110  U.  S.  651. 

47  Minor  v.  Happersett,  1874,  21  Wall.  162. 

48  92  TJ.  S.  214  (1875). 

49  Ratliff  v.  Beale,  1896,  20  S.  865. 

60  Const.,  1890,  art.  XII,  sees.  241  et  seq. 

61  Const,  1895,  art.  IE. 

52  Const.,  1898,  arts.  197,  198,  and  202. 
"Revised   Stat,   1905,   sees.   4315-17;   Const,   1875,   as 
amended  1900,  art.  VI. 

54  Const.,  1902,  sees.  177-82. 

55  Const,  1902,  art.  II,  sees.  18  et  seq. 
66  Laws  of  Ga.,  1908,  pp.  27-31. 

344 


NOTES 

57  W.  P.  Pickett :  "  The  Negro  Problem,"  1909,  G.  P.  Put- 
nam's Sons,  p.  250;  Laws  of  Md.,  1908,  pp.  301-04. 

58  Const,  of  U.  S.,  art.  I,  sec.  8,  par.  4. 

59  22  Stat.  L.,  61. 

60  Federal  Stat.,  annotated,  vol.  5,  pp.  207-08. 

61  Hedgman  v.  Bd.  of  Kegistration,  1872,  26  Mich.  51. 

62  The  American  Political  Science  Review,  vol.  4,  p.  63 
(Feb.,  1910). 

63  31   Stat.   L.,   82-83,   chap.    191;   Sixty-first  Cong.,   2d 
sess.,  H.  Doc.  No.  615 ;  Congressional  Record,  vol.  45,  p.  1199. 

64  Williams  v.  Miss.,  1898,  170  U.  S.  213,  at  p.  225. 

65  Mills  v.   Green,  1895,  159  U.   S.  651;  Jones  v.  Mon- 
tague, 1904,  194  U.  S.  147;  Selden  v.  Montague,  1904,  194 
U.  S.  153;  Giles  v.  Teasley,  1904,  136  Ala.  164,  and  193  U.  S. 
146;  Giles  v.  Harris,  1903,  189  U.  S.  475.    For  discussions 
of  the  constitutionality  of  the  suffrage  laws  of  the  South  see 
The  American  Political  Science  Review,  vol.  I,  pp.  17,  et 
seq.,  and  John  Mabry  Mathews :  "  History  of  the  Fifteenth 
Amendment,"  1909,  The  Johns  Hopkins  Press,  pp.  97-127. 

60  Mathews :  History  of  the  Fifteenth  Amendment,  pp. 
125-26. 

6T  Raleigh,  N.  C.,  News  and  Observer,  Nov.  9,  1907; 
Feb.  24,  25,  and  28,  1909. 

68  See  Poindexter  v.  Greenhow,  1884,  114  U.  S.  270,  at 
p.  304;  and  Spraigue  v.  Thompson,  188S,  118  U.  S.  90,  at 
p.   95. 

69  Laws  of  Md.,  1910,  chap.  253. 

70  The  Harvard  Law  Review,  vol.  XXIII,  p.  169. 

71  W.  P.  Pickett :  The  Negro  Problem,  pp.  259-84. 
"Kirby's  Digest,  1904,  sec.  2767. 

73  Const.,  1880,  art.  II,  sec.  1,  as  amended  1894. 

74  Const,  1876,  art.  VII,  sec.  1,  as  amended  1893;  Revised 
Stat,  1908,  sees.  2027  and  2146-50. 

345 


SUFFRAGE 

75  Const.,  1818,  art.  VI,  sees.  2  and  3,  as  amended  1897 ; 
General  Stat.,  1902,  sees.  1593-94. 

76  Const.,  1831,  art.  IV,  sec.  1. 

77  Const.,  1887,  art.  VI,  sec.  1;  General  Stat,  1906, 
sec.  170. 

78  Const.,  1889,  art.  VI,  sec.  2. 
'*  Const.,  1870,  art.  VII,  sec.  1. 

80  Const.,  1851,  art.  II,  sees.  84-85 ;  Burns's  Stat.,  1908, 
II,  sec.  6877. 

81  Const,  1881,  art.  II. 

82  Const.,  1859,  art.  V. 

83  Const.,  1891,  sec.  145. 

84  Const.,  1819,  art.  II,  as  amended  1893. 

85  Const.,  1867,  art  I,  sees.  1-3. 

86  Const.,  1780,  as  amended  1821  and  1857. 

87  Const,  1850,  art.  VII,  sees.  1  and  8. 

88  Const.,  1858,  art.  VII. 

89  Const,  1875,  art.  VIII,  sees.  2,  8,  10,  and  11. 

90  Const.,  1889,  art.  IX. 

91  Const,  1866,  art.  VII. 

92  Const.,  1864,  art  II. 

93  Public  Stat,  1901,  pp.  136-37. 

94  Const,  1864,  art.  II. 

95  Const.,  1894,  art  II. 

96  Const,  1889,  as  amended,  sec.  121. 

97  Const,  1851,  art.  V. 

98  Const.,  1907,  art.  III. 

99  Const.,  1859,  art  II. 

100  Const.,  1874,  art  VIII. 

101  Const.,  1842,  as  amended  1888,  art.  II. 

102  Const.,  1889,  art.  VII. 

103  Const,  1870,  art.  IV. 

104  Herron's  Sup.  to  Sayles's  Civil  Stat.,  1906,  p.  165. 

346 


NOTES 

105  Const,  1895,  art.  IV. 

106  Statutes,  1906,  p.  104. 

107  Const.,  1889,  art.  VI. 

108  Const.,  1872,  art.  IV,  sec.  1. 

109  Const.,  1848,  art.  III. 

110  Const,  1889,  art  VI. 

111  Code,  1907,  part  V,  sec.  199. 

112  Kevised  Stat,  1901,  sec.  2282. 

113  Kevised  Laws,  1901,  sees.  18,  60,  and  63. 

114  Organic  Act,  1850,  sec.  6 ;  Compiled  Laws,  1897,  sees. 
1647,  1672,  and  1677-78. 

115  The  Outlook,  vol.  91,  p.  78. 


CHAPTER    XII 
RACE    DISTINCTIONS    VERSUS    RACE    DISCRIMINATIONS 

HERETOFORE,  the  writer  has  let  the  legislatures  and 
courts  speak  for  themselves,  withholding  personal  opin- 
ions and  refraining  from  making  deductions  from  the 
facts  revealed.  Now,  however,  that  the  various  race  dis- 
tinctions have  been  reviewed  at  some  length,  it  may  be 
worth  while  to  consider  what  conclusions  the  facts  warrant 
and  what  practical  lessons  they  suggest. 

RACE   DISTINCTIONS    NOT   CONFINED   TO    ONE    SECTION 

Eace  distinctions  are  not  confined  to  any  one  section 
of  the  country.  This  conclusion  is  the  most  patent  of  all. 
There  is  scarcely  a  State  or  Territory  in  the  Union  where 
legislative  or  judicial  records  do  not  reveal  the  actual  ex- 
istence of  at  least  some  race  distinctions.  Of  the  twenty- 
six  States  and  Territories  that  prohibit  intermarriage, 
more  than  half,  extending  from  Delaware  to  Oregon,  are 
outside  the  South.  Negroes  have,  on  account  of  their 
race,  been  excluded,  usually  contrary  to  the  local  laws, 
from  hotels  in  Massachusetts,  Pennsylvania,  Indiana,  New 
York,  Wisconsin,  Michigan,  Ohio,  and  Iowa;  from  barber- 
shops, in  Nebraska  and  Connecticut;  from  boot-black 
stands,  in  New  York;  from  billiard-rooms,  in  Massachu- 

348 


RACE   DISTINCTIONS   NOT   CONFINED   TO   ONE   SECTION 

setts;  from  saloons,  in  Minnesota  and  Ohio;  from  soda 
fountains,  in  Illinois;  from  theatres,  in  Illinois  and  New 
York ;  from  skating  rinks  in  New  York  and  Iowa ;  and  the 
bodies  of  Negroes  have  been  refused  burial  with  those  of 
white  persons  in  Pennsylvania.  It  is  not  meant  here  that 
Negroes  are  always  excluded  from  such  places  in  these 
States,  but  that  instances  of  such  exclusions  are  found  in 
the  laws.  Most  of  the  States  have  at  one  time  or  another 
made  distinctions  between  the  races  in  schools.  California 
and  other  States  of  the  Far  West  are  demanding  sep- 
arate schools  for  Japanese.  Ohio,  Indiana,  Illinois,  and 
Iowa,  besides  other  States  of  the  Middle  West,  clash  from 
time  to  time  with  their  school  boards  for  attempting  to 
separate  the  races  in  schools.  Delaware  is  diligent  in  pro- 
viding separate  schools  for  white  persons  and  Negroes. 
In  Massachusetts,  until  1857,  the  school  board  of  Boston 
provided  a  separate  school  for  Negroes  in  that  city. s  As  to 
public  conveyances,  the  term  "  Jim  Crow,"  applied  to  a  car 
set  apart  for  Negroes,  was  first  used  in  Massachusetts,  and 
it  was  in  Pennsylvania  that  the  first  leading  case  involving 
the  right  of  street  car  companies  to  separate  their  passen- 
gers by  race  arose.  Instances  of  actual  discrimination 
against  Negroes  by  common  carriers  were  found  in  Illi- 
nois, Iowa,  and  California.  How  common  race  distinc- 
tions are  in  the  States  mentioned  the  above  resume  does 
not  clearly  show,  because  the  great  majority  of  grievances 
caused  by  race  distinctions  do  not  reach  the  court.  But 
when  one  finds  that  the  legislature  has  deemed  it  advisable 
to  enact  a  law  against  race  distinctions,  it  is  reasonable 
to  assume  that  they  did  in  fact  exist.  For  instance,  five 
States,  all  outside  the  South,  prohibit  discriminations  by 

349 


RACE    DISTINCTIONS    VERSUS    RACE    DISCRIMINATIONS 

insurance  companies  on  account  of  race.  Had  these  com- 
panies not  evinced  signs  of  discrimination  against  Ne- 
groes, such  statutes  would  not  have  been  enacted.  It  is 
well  known  that  race  distinctions  are  common  in  the 
South. 

Were  this  general  prevalence  of  race  distinctions  fully 
realized,  the  result  would  be  a  kindlier  feeling  one  to 
another  among  the  white  people  of  the  various  sections. 
They  would  then  see  that  the  presence  or  absence  of  race 
distinctions  is  due,  not  to  any  inherent  difference  in  the 
character  of  the  people,  but  to  diverse  conditions  and  en- 
vironment. When,  therefore,  the  Negro  children  of  Up- 
per Alton,  Illinois,  are  seen  to  constitute  an  appreciable 
percentage  of  the  school  population,  the  people  of  that 
town,  as  the  people  of  a  Southern  town  would  do  under 
similar  circumstances,  demand  for  them  a  separate 
school. 

RACE   DISTINCTIONS    NOT   CONFINED   TO    ONE   RACE 

Eace  distinctions  are  not  confined  to  any  one  race. 
It  is  true  that  most  of  the  statutes  and  judicial  decisions 
above  referred  to  relate  to  the  Negro  because  he  belongs 
to  a  race  which  is  the  largest  non-Caucasian  element  in 
the  United  States.  Where,  however,  other  race  elements 
exist  in  considerable  numbers,  similar  distinctions  are 
sanctioned.  One  finds,  for  instance,  in  California  and 
other  States  of  the  Far  West,  where  Japanese  are  numer- 
ous, laws  prohibiting  intermarriage  between  Mongolians 
and  Caucasians,  and  requiring  separate  schools  for  the 
two  races.  Similar  laws  have  been  enacted  wherever  there 
is  an  appreciable  number  of  Indians.  Wherever,  in  other 

350 


EACE   DISTINCTIONS    NOT   DECREASING 

words,  any  two  races  have  lived  together  in  this  country 
in  anything  like  equal  numbers,  race  distinctions  have 
been  recognized  in  the  law  sooner  or  later;  and,  before 
becoming  legally  recognized,  have  existed  in  practice. 

RACE   DISTINCTIONS    NOT   DECREASING 

Bace  distinctions  do  not  appear  to  be  decreasing.  On 
the  contrary,  distinctions  heretofore  existing  only  in  cus- 
tom tend  to  crystallize  into  law.  As  a  matter  of  fact, 
most  of  the  distinctions  which  are  described  above  as  the 
"  Black  Laws  of  1865-68  "  are  no  longer  in  force.  No 
State  now  carries  statutes  prescribing  the  hour  when  a 
Negro  laborer  must  arise,  requiring  his  contracts  to  be  in 
writing,  prohibiting  him  from  leaving  the  plantation  or 
receiving  visitors  without  his  employer's  consent,  or  ex- 
acting a  license  fee  of  him  before  he  can  engage  in  certain 
trades.  These  laws  were  vestiges  of  the  slave  system  and 
survived  but  a  short  time  after  that  system  had  been  abol- 
ished. Likewise,  those  statutes  which  prohibited  Negroes 
from  testifying  in  court  against  white  persons  were  re- 
pealed during  the  first  few  years  after  Emancipation.  But 
distinctions  which  are  not  the  direct  results  of  slavery 
have  found  an  increasing  recognition  in  the  law.  Thus, 
though  Florida,  Mississippi,  and  Texas  had  separate  rail- 
road coaches  for  freedmen  in  1866,  the  regular  "Jim 
Crow  "  laws  did  not  begin  to  creep  into  the  statutes  of  the 
Southern  States  till  1881.  Now  every  Southern  State, 
except  Missouri,  has  a  law  separating  the  races  in  rail- 
road cars.  Mississippi,  in  1888,  was  the  first  State  to 
require  separate  waiting-rooms.  Louisiana,  in  1902,  took 
the  lead  in  compelling  separate  street  car  accommodations, 

351 


RACE    DISTINCTIONS    VERSUS    RACE    DISCRIMINATIONS 

being  followed  by  most  of  the  Southern  States  within  the 
last  seven  years. 

A  similar  tendency  toward  crystallization  of  race  dis- 
tinctions into  law  is  found  in  schools.  Though  Massa- 
chusetts permitted  separate  schools  as  early  as  1800,  and 
though  the  Southern  States  required  them  from  the  be- 
ginning of  their  public  school  system,  it  is  only  recently 
that  any  States  have  seen  fit  to  create  distinctions  in  pri- 
vate schools  by  legislation.  At  present,  Florida,  Ken- 
tucky, Oklahoma,  and  Tennessee  prohibit  the  teaching  of 
white  and  Negro  students  in  the  same  private  schools,  and 
their  action  in  so  doing  the  Supreme  Court  of  the  United 
States  in  the  Berea  College  case  has  decided  to  be  con- 
stitutional. Moreover,  the  Japanese  school  question  of  the 
West  has  become  of  national  concern  only  within  the  last 
two  years. 

In  the  matter  of  suffrage  also  one  observes  the  same 
general  trend  of  practices  slowly  passing  into  statutes. 
Between  1877  and  1890  Negroes  in  the  South  were  dis- 
franchised to  a  great  extent  in  defiance  of  law.  Begin- 
ning with  Mississippi  in  1890  and  ending  with  Georgia  in 
1908,  seven  Southern  States  have  made  constitutional  pro- 
visions which,  though  not  in  letter  creating  race  distinc- 
tions, lend  themselves  to  race  discriminations. 

That  actual  race  distinctions  still  persist  outside  the 
South  is  shown  by  recent  decisions.  For  instance,  within 
a  year,  the  Appellate  Division  of  the  Supreme  Court  of 
New  York,  in  reducing  damages  awarded  in  the  court 
below  to  a  Negro  porter  for  false  imprisonment,  held  that 
by  reason  of  his  race,  he  did  not  suffer  as  much  damage 
as  would  a  white  man  under  like  circumstances.  The 

352 


DISTINCTIONS    NOT    BASED    ON    RACE    SUPERIORITY 

New  York  Times  of  November  19,  1909,  refers  to  a 
recent  decision  of  the  Supreme  Court  of  Iowa  as  holding 
that  a  coffee  company  licensed  under  the  State  laws,  being 
a  private  concern,  has  the  right  to  refuse  to  serve  a  Negro. 
Perhaps,  as  a  whole,  actual  race  distinctions  in  the 
United  States  are  not  increasing;  but  distinctions,  formerly 
sanctioned  only  by  custom,  are  now  either  permitted  or 
required  by  law,  and  the  number  of  recent  suits  in  States 
outside  the  South  indicates  that  actual  discriminations  are 
as  prevalent  as  they  have  been  at  any  time  since  1865. 

DISTINCTIONS   NOT  BASED  ON  RACE  SUPERIORITY 

What  is  the  fundamental  cause  of  race  distinctions? 
No  comparison  of  laws  can  formulate  an  answer  to  that 
question;  but  the  personal  observation  of  the  writer  leads 
to  the  belief  that  race  distinctions  are  not  based  funda- 
mentally upon  the  feeling  by  one  race  of  superiority  to  the 
other,  but  are  rather  the  outgrowth  of  race  consciousness. 
If  Negroes  were  in  every  way  equally  advanced  with  white 
people,  race  distinctions  would  probably  be  even  more 
pronounced  than  now;  because,  in  addition  to  physical 
differentiation,  there  would  be  the  rivalry  of  equally 
matched  races.  Thus,  the  widespread  prejudice  enter- 
tained by  Gentiles  toward  Jews,  resulting  in  actual,  if 
not  legal,  distinctions,  is  due,  not  to  any  notion  that  Jews 
are  intellectually  or  morally  inferior  to  any  people,  but 
to  a  race  consciousness  which  each  possesses.  The  exclu- 
sion of  the  Japanese  was  due,  not  so  much  to  an  intel- 
lectual or  moral  inferiority  of  that  race  to  the  white  race, 
as  to  a  difference  in  their  racial  ideals.  So  long  as  two 
races  living  side  by  side  have  each  an  amour  propre,  the 
24  353 


RACE    DISTINCTIONS    VERSUS    RACE    DISCRIMINATIONS 

more  numerous  may  be  expected  to  prescribe  distinctions 
to  which  the  less  numerous  must  submit ;  that  is,  until  the 
spirit  of  universal  brotherhood  is  a  more  compelling  force 
than  it  is  at  present. 


If  the  above  generalizations  are  correct,  they  should 
enable  one  to  draw  some  practical  conclusions  for  dealing 
with  race  problems.  The  proper  adjustment  of  race 
relations  is  being  retarded  by  the  multiplicity  of  suggested 
solutions,  many  of  them  conflicting  and  thus  hindering 
one  another,  some  of  them  parallel  and  necessarily  dupli- 
cating expenditure  of  energy.  For  instance,  some  men, 
including  both  Negroes  and  white  persons,  believe  that 
the  proper  solution  of  the  race  problem  is  the  deportation 
of  the  Negro  race ;  others,  that  it  is  the  segregation  of  that 
race  in  some  portion  of  the  United  States  or  colonization 
in  some  territorial  possession;  while  others  believe  that 
the  South  should  remain  the  permanent  home  of  the  ma- 
jority of  Negroes.  Advocates  of  territorial  separation  of 
one  sort  or  another  think  that  efforts  should  be  directed 
toward  getting  the  Negro  to  his  new  home  as  soon  as  pos- 
sible. Those  who  believe  that  the  home  of  the  Negro  will 
remain  in  this  country  are  divided  upon  the  steps  to  be 
taken.  Some  of  this  class  approve  of  further  education 
of  the  Negro,  being  divided,  however,  into  two  overlapping 
groups,  the  one  emphasizing  literary  training,  and  the 
other  industrial.  Others  of  this  class  maintain  that  any 
sort  of  systematic  education  of  the  Negro  is  only  hasten- 
ing an  inevitable  race  conflict.  In  the  midst  of  these  con- 

354 


SEARCH    FOR   A    COMMON    PLATFORM 

flicting  opinions,  the  Negro  problem,  instead  of  reach- 
ing a  complete  or  even  partial  solution,  is  only  being 
aggravated. 

There  is  no  need  of  prophesying  what  the  final  solu- 
tion will  be,  but  one  is  justified  in  believing  that  the  in- 
evitable changes  will  be  gradual.  Whether  or  not  the  final 
adjustment  is  a  segregation  of  the  Negro  race,  one  can 
hardly  expect  it  to  come  in  one,  two,  or  even  six  decades. 
A  century  hence  the  white  people  will  probably  be  living 
side  by  side  with  Negroes  as  they  do  now.  The  duty 
of  the  American  people  is  to  act  properly  toward  all  races 
in  their  own  lifetime:  the  far  future  will  take  care  of 
itself.  The  difficult  thing  to  ascertain  is  the  proper  mode 
of  acting  to-day.  The  solution  of  the  race  problem,  when 
it  does  come,  will  doubtless  be  a  composite  result.  The 
race  relations  are  not  the  same  in  different  sections  of 
the  country  or  in  different  States  of  the  South  or  even 
in  different  counties  of  the  same  State.  Though  the 
proper  steps  now  to  be  taken  in  the  various  sections  or 
States  or  counties  may  be  different,  there  can,  in  the  na- 
ture of  things,  be  but  one  best  mode  of  action  for  each 
community.  That  must  be  one  for  which  all  people,  re- 
gardless of  race  or  section,  may  profitably  strive. 

SEARCH   FOE  A   COMMON  PLATFORM 

A  noticeable  effort  has  been  made  during  the  past  few 
years  by  students  of  race  relations  to  construct  a  platform 
upon  which  all  men  of  every  race  may  stand  and  work 
together  for  the  permanent  settlement  of  all  racial  antag- 
onisms. This  is  evidenced  by  the  organization  of  late 
years  of  national  movements  which  have  enlisted  the  sup- 

355 


RACE    DISTINCTIONS    VERSUS    RACE    DISCRIMINATIONS 

port  of  men  of  different  sections  and  races.  One  of  these, 
the  Southern  Education  Association,  has  been  promoted 
by  men  from  the  North  and  East  as  well  as  by  men  from 
the  South,  by  both  Negroes  and  white  people.  Soon  after 
the  Atlanta  riots  of  two  years  ago,  a  conference  of  South- 
ern white  men  and  Negroes  was  held  at  Atlanta,  for  the 
purpose  of  promoting  harmony  between  the  races  in  the 
South.  Within  a  few  months  a  conference  of  Northern  and 
Southern  white  men  has  met  in  Washington  City  to  con- 
sider the  Negro  problem.  Still  more  recently  a  group  of 
Southern  students  in  Harvard  University,  realizing  that 
the  race  relations  were  different  in  different  localities  of 
the  South,  have  organized  an  informal  club  to  study  the 
practical  problems  arising  out  of  the  presence  of  the 
Negro  in  the  South  and  to  exchange  ideas  formed  from 
observation  and  experience  in  their  respective  localities. 
There  are  other  indications  of  a  desire  to  work  out  a  com- 
mon set  of  principles  by  which  everyone  may  be  governed. 

PROPER  PLACE  OP  RACE  DISTINCTIONS 

Assuming  that  it  is  possible  to  formulate  a  platform 
deserving  the  approval  of  all  races,  it  is  appropriate  for  a 
student  of  any  phase  of  race  relations  to  suggest  a  plank 
for  it.  A  student  in  the  special  field  of  race  distinctions  in 
American  law  may  endeavor  to  show  the  place  that  such 
legal  distinctions  properly  hold,  bearing  in  mind  all  the 
while  that  the  whole  issue  springs  out  of  race  conscious- 
ness as  it  actually  exists  to-day,  not  as  it  should  be  or  as 
it  may  be  in  the  distant  future. 

Let  one  imagine  the  existence  of  a  Federal  statute — 
waiving  the  question  of  its  constitutionality — prohibiting 


PROPER    PLACE    OF    RACE   DISTINCTIONS 

States  from  legalizing  race  distinctions,  so  that  all  public 
places  of  amusement,  accommodation,  and  instruction 
would  be,  so  far  as  the  law  could  make  them,  open  to  all 
persons,  regardless  of  race.  Such  a  measure,  far  from 
effecting  its  purpose,  would  doubtless  be  the  beginning  of 
extensive  race  discriminations.  Once  abolish  separate  ho- 
tel accommodations  and  the  white  race,  wherever  it  is  in 
the  majority,  would  monopolize  every  hotel,  leaving  other 
races  either  to  walk  the  streets  or  to  find  accommodations 
in  private  houses.  Were  separate  street  car  accommoda- 
tions forbidden  in  cities  where  there  is  a  fairly  large  per- 
centage of  Negroes,  if  any  passenger  were  forced  to  stand 
or  be  crowded  off  the  car  altogether,  it  would  be  the  Negro. 
Were  separate  schools  not  permitted,  Negro  children  might 
possibly  be  excluded  from  schools  altogether  in  defiance 
of  the  law;  but  even  if  admitted,  their  interests,  if  dif- 
ferent from  those  of  the  more  numerous  race,  would  have 
to  be  sacrificed.  A  further  review  of  race  distinctions 
now  legally  recognized  would  only  more  fully  substantiate 
the  conclusion  that,  with  race  feeling  as  it  is,  if  such  dis- 
tinctions were  not  recognized  and  enforced,  the  stronger 
race  would  naturally  appropriate  the  best  for  itself  and 
leave  the  weaker  race  to  fare  as  it  could. 

On  the  other  hand,  let  one  imagine  that  the  same  laws 
recognizing  race  distinctions  as  now  exist  in  the  South 
obtained  in  all  communities  where  two  races  are  nearly 
equal  in  numbers.  Suppose,  for  instance,  that  separate 
hotels  were  permitted  in  all  cities  which  receive  an  appre- 
ciable number  of  Negro  travelers.  Respectable  Negroes 
might  then  secure  comfortable  entertainment  in  hotels 
provided  for  their  race  and  thus  escape  the  inconvenience 

357 


RACE    DISTINCTIONS    VERSUS    RACE    DISCRIMINATIONS 

and  humiliation  of  being  denied  admission  to  hotels  main- 
tained exclusively  for  white  persons.  If  separate  schools 
were  provided,  Negro  children  would  be  free  to  pursue, 
unhampered  by  requirements  prescribed  for  the  more  de- 
veloped race  and  unembittered  by  continuous  manifesta- 
tions of  race  prejudice,  a  curriculum  especially  adapted 
to  their  own  needs.  Wherever  separate  railroad  and  street 
car  accommodations  were  provided,  a  Negro  might  enter 
the  car  or  compartment  reserved  for  his  race  and  go  his 
way  in  peace,  unmolested  by  the  thoughtless  or  vicious  of 
the  other  race.  The  result,  therefore,  of  the  honest  en- 
forcement of  race  distinctions  would  be  to  the  advantage 
of  the  weaker  race. 

OBLITERATION   OF   RACE   DISCRIMINATIONS 

The  people  of  the  different  sections  and  races,  instead 
of  inquiring  into  the  truth  or  falsity  of  such  a  conclusion, 
have  been  agitating  the  theoretical  right  and  wrong  of 
race  distinctions.  Meanwhile,  indications  are  that  legal- 
ized race  distinctions  have  been  unfairly  enforced.  For 
instance,  statutes  require  that  equal  accommodations  be 
given  Negro  passengers  in  public  conveyances;  yet,  while 
people  have  been  debating  the  constitutionality  and  justi- 
fication of  the  "  Jim  Crow  "  laws,  railroad  companies  have 
been  compelling  Negroes  to  occupy  uncomfortable  and  un- 
sanitary coaches  and  waiting-rooms,  and  this  though  Ne- 
groes paid  the  same  fare  as  white  passengers.  Further- 
more, while  they  have  been  arguing  the  constitutionality 
of  the  suffrage  laws  of  the  South,  white  registrars  have 
been  putting  unfair  tests  to  Negro  applicants  for  regis- 
tration, and  by  so  doing  have  made  the  laws  a  tool  by 

358 


OBLITERATION   OF   RACE   DISCRIMINATIONS 

which  to  work  injustice  to  the  Negro.  While,  finally,  they 
have  been  strenuously  discussing  the  school  laws,  Negro 
children  have  been  suffering  from,  not  only  inadequate 
but,  in  many  cases,  improper  training  by  ignorant  Negro 
teachers. 

In  suggesting  the  benefits  that  would  accrue  to  the 
weaker  race  from  legalized  race  distinctions,  it  is  assumed 
that  such  distinctions  would  apply  only  in  communities 
in  which  two  races  live  side  by  side  in  something  like 
equal  numbers.  The  white  people  of  the  South  should  rec- 
ognize the  inexpediency  of  requiring  separate  schools,  sep- 
arate railroad  and  street  cars,  separate  hotels,  and  separate 
accommodations  in  general  for  the  colored  races  in  most 
places  outside  the  South  where  they  constitute,  in  many 
instances,  not  more  than  one-tenth  of  the  total  popula- 
tion. The  white  people  in  the  places  last  mentioned 
should  recognize  that  it  would  be  equally  unwise  to  crowd 
together  white  and  colored  races  in  schools,  public  convey- 
ances, hotels,  theatres,  and  other  public  places  in  the 
South.  Colored  people  everywhere  should  realize  that  a 
race  distinction  is  not  necessarily  a  badge  of  racial  in- 
feriority, but  may  be  simply  a  natural  result  of  racial 
differentiation.  Race  distinctions  may,  therefore,  have 
a  very  appropriate  place  in  communities  where,  as  has 
been  said  before,  two  races  are  about  equal  in  numbers, 
at  least  where  there  are  enough  of  the  subordinate  race  to 
arouse  in  the  dominant  a  feeling  of  race  consciousness. 

Where,  under  the  above  view,  race  distinctions  are  jus- 
tifiable, and  are  enacted  into  law,  the  people  of  all  races 
should  unite  in  demanding  that  the  laws  be  fairly  applied. 
If,  for  instance,  the  presence  of  sufficient  Negroes  make 

359 


RACE    DISTINCTIONS    VER8D8    RACE    DISCRIMINATIONS 

it  advisable  to  separate  the  races  in  public  conveyances, 
the  white  people  should  unite  with  them  in  demanding 
that  they  be  given  equal  accommodations.  The  Negro 
who  has  paid  a  first-class  fare  is  entitled  to  coaches  and 
waiting-rooms  as  sanitary,  comfortable,  and  convenient  as 
those  provided  for  white  persons  paying  the  same  fare. 
With  separate  schools  provided,  they  should  insist  that 
each  race  be  given  an  equal  opportunity  to  get  the  sort  of 
training  it  most  needs  to  do  its  work.  This  training  may 
be  different.  The  Southern  Education  Association 1  in 
session  at  Lexington,  Kentucky,  said :  "  On  account  of 
economic  and  psychological  differences  in  the  two  races 
we  believe  there  should  be  a  difference  in  the  courses  of 
study  and  methods  of  teaching,  and  that  there  should  be 
such  an  adjustment  of  school  curricula  as  shall  meet  the 
evident  needs  of  Negro  youth."  If  it  is  true  that  the 
Negro  child  needs  a  different  sort  of  training  from  the 
white,  then  it  is  a  discrimination  to  give  him  the  training 
peculiarly  suited  to  the  child  of  the  other  race.  People 
may  demand  for  the  two  races  equal  educational  opportu- 
nities, and  at  the  same  time  advocate  different  courses  of 
study  and  methods  of  teaching. 

In  States  which  have  added  new  qualifications  for  suf- 
frage, both  races  may  demand  their  impartial  application. 
A  Negro  public  spirited  enough  to  pay  his  taxes,  with  edu- 
cation enough  to  read  and  write,  or  thrifty  enough  to 
accumulate  the  required  amount  of  property  should  be 
allowed  to  register  and  vote  as  freely  as  a  white  man  with 
similar  qualifications.  A  white  registrar  who  discrim- 
inates against  a  Negro  applicant,  by  setting  for  him  more 
difficult  tests  than  are  set  for  white  applicants,  is  doing 

360 


OBLITERATION    OF    RACE    DISCRIMINATIONS 

an  injustice  to  the  white  people  equally  as  great  as  that 
done  to  the  Negroes.  John  B.  Knox,2  President  of  the 
Alabama  Constitutional  Convention  of  1901,  said  at  that 
time :  "  If  we  would  have  white  supremacy,  we  must  es- 
tablish it  by  law — not  by  force  or  fraud.  If  you  teach 
your  boy  that  it  is  right  to  buy  a  vote,  it  is  an  easy  step 
for  him  to  learn  to  use  money  to  bribe  or  corrupt  officials 
or  trustees  of  any  class.  If  you  teach  your  boy  that  it  is 
right  to  steal  a  vote,  it  is  an  easy  step  for  him  to  believe 
that  it  is  right  to  steal  whatever  he  may  need  or  greatly 
desire."  Speaking  from  the  standpoint  of  the  Negro,  Dr. 
Booker  T.  Washington  3  said :  "  As  a  rule,  I  believe  in  uni- 
versal, free  suffrage,  but  I  believe  that  in  the  South  we 
are  confronted  with  peculiar  conditions  that  justify  the 
protection  of  the  ballot  in  many  of  the  States,  for  a  while 
at  least,  either  by  an  educational  test,  a  property  test,  or 
by  both  combined;  but  whatever  tests  are  required,  they 
should  be  made  to  apply  with  equal  and  exact  justice  to 
both  races."  All  people,  white  and  black,  should  unite, 
not  to  secure  the  repeal  of  the  suffrage  laws,  but  to  secure 
their  enforcement  with  absolute  impartiality. 

The  welfare  of  both  races — and  this  conclusion  applies 
equally  to  the  other  non-Caucasian  races — requires  the 
recognition  of  race  distinctions  and  the  obliteration  of  race 
discriminations.  The  races  should  be  separated  wherever 
race  friction  might  result  from  their  enforced  association. 
The  white  race  cannot  attain  its  highest  development  when 
continually  venting  its  spite  upon  the  less  fortunate  race. 
Nor,  indeed,  can  the  Negro  race  reach  its  highest  devel- 
opment when  continually  subjected  to  the  oppressions  of 
the  more  fortunate  race. 

361 


RACE    DISTINCTIONS    VERSUS    RACE    DISCRIMINATIONS 

Such  a  recognition  of  race  distinctions  and  such  an 
obliteration  of  race  discriminations  as  are  here  advocated 
constitute  principles  by  which  all  people,  of  every  section 
and  of  every  race,  may  stand  and  labor  for  the  promotion 
of  good  feeling  between  all  sections  and  harmony  between 
all  races. 

NOTES 

1  Ealeigh,  N.  C.,  News  and  Observer,  Dec.  31,  1907. 

2  Proceedings  of  the  Ala.  Const.  Conv.,  1901,  p.  12. 

3  Booker  T.  Washington :  "  Up  from  Slavery,"  p.  237. 


TABLE   OF  CASES  CITED 


Alsberg  v.   Lucerne    Hotel   Co. 

(53),  127. 
Anderson  v.  L.  &  N.  Ry.  Co. 

(44),  218. 
Anthony  v.  Halderman  ( 40 ) , 

293. 


Barrett  v.  Jarvis  (3),  27. 

Baylies  v.  Curry    (73),  135. 

Bell  v.  State   (33),  17. 

Berea  College  v.  Com.  (4),  157; 
(5),  158. 

Bernier  v.  Russell   (45),  293. 

Binyon  v.  U.  S.  (48),  250. 

Board  of  Education  of  Rich- 
mond Co.  v.  Cummings  ( 158) , 
193;  (159),  193. 

Board  of  Education  v.  Tinnon 
(112),  183. 

Booker  v.  Grand  Rapids  Med- 
ical College  ( 147 ) ,  188. 

Bowlinv.  Com.  (4),  106;  (15), 
243. 

Bowlin  v.  Lyon   (76),  136. 

Bradwell  v.  State   (5),  240. 

Bryan  v.  Adler  (56),  128. 


Bullock  v.  N.  J.   (50),  250. 
Burks  v.  Basso   (61),  130. 
Burns  v.  State  (61),  97. 
Bush  v.  Com.  of  Ky.  (48),  250. 
Butler  v.  Butler    (29),  74. 


C 

C.  &  N.  W.  Ry.  Co.  v.  Will- 
iams (16),  212. 

C.  &  O.  Ry.  Co.  v.  Com.  of  Ky. 
(42),  217;  (50),  221. 

Carter  v.  Texas  (47),  249; 
(49),  250;  (50),  250. 

Cavitt  v.  Texas    (50),  250. 

Cecil  v.  Green   (69),  133. 

Chase  v.  Stephenson  (94),  179. 

Chiles  v.  C.  &  0.  Ry.  (47),  219. 

Civil  Rights  Cases   (14),  110. 

Clark  v.  Board  of  Sch.  Dirs. 
(106),  183. 

Claybrook  v.  Owensboro  (176), 
197. 

Coger  v.  N.  W.  Union  Packet 
Co.  (17),  212. 

Coleman  v.  Vollmer   (25),  73. 

Collins  v.  Texas   (50),  250. 

Com.  v.  Sylvester   (62),  131. 

Com.  v.  Williamson  (131),  186. 


1  The  number  in  parentheses  refers  to  the  note;  the  other  number, 
to  the  page. 

363 


TABLE   OF    CASES   CITED 


Comer  v.  Comer  ( 5 ) ,  69. 
Cooper  v.  Md.  (50),  250. 
Cory  v.  Carter   (102),  181. 
Crosby    v.    City    of    Mayfield 

(180),  198. 
Cumby  v.  Garland  (25),  73. 

D 

Dallas  v.  Fosdick   (119),  185. 
Dawson  v.  Lee  (177),  197. 
Derry  v.  Lowry   (13),  211. 
De   Veaux  v.   Clemmons    (57), 

128. 
Dick's   Charge  to  Grand  Jury 

(12),  109. 

Dolan  v.  State  (9),  242. 
Donnell  v.  State   (70),  134. 
Dove  v.  Ind.  Sch.  Dist.  of  Keo- 

kuk  (107),  183. 
Down  v.  Allen    (32),  74. 

E 

Eastling  v.  Ark.  (50),  250. 
Eden  v.  Legare  ( 1 ) ,  27. 
Ellis  v.  Ala.   (62),  274. 
Emmons's     Charge     to     Grand 

Jury   (13),  109;    (71),  134. 
Estill  v.  Rogers  (12),  71. 

F 

Faulkner  v.  Salozzi   (60),  129. 
Ferguson  v.  Gies  (55),  128. 
Flood  v.  News  and  Courier  Co. 

(7),  28. 

Francois,  ex  parte  (44),  86. 
Frasher  v.  State  (63),  97. 
Fugett  v.  Texas  (50),  250. 
Furchey  v.  Eagleaon  (51),  125. 


G 

Giles  v.  Harris   (65),  314. 
Giles  v.  Teasley  (65),  314. 
Gillespie  v.  Palmer  (13),  284. 
Green  v.  Ala.   (50),  250. 
Green  v.  "  City  of  Bridgeton  " 

(26),  216. 

Green  v.  State  (62),  97. 
Griffin  v.  Brady  (72),  276. 

H 

Haden  v.  Ivey  (21),  73. 

Haggard  v.  Ky.  (50),  250. 

Hall  v.  DeCuir   (20),  213. 

Hedgman  v.  Bd.  of  Registra- 
tion (61),  297. 

Hicks  v.  Ky.    (50),  250. 

Hopkins  v.  Bowers  (32),  17. 

Houck  v.  S.  Pac.  Ry.  Co.  (52), 
224. 

Hubbard  v.  Texas  (50),  250. 

Humburd  v.  Crawford  (58), 
129. 


Jones  v.  Montague  (65),  314. 
Joseph  v.  Bidwell  (72),  135. 

K 

Kaine  v.  Sch.  Dirs.  (133),  186. 
Kellar  v.  Koerber   (64),  133. 
Kellogg  v.  Warmouth  ( 41 ) ,  293. 
Kelly  v.  State  (10),  242. 
Kinney,  ex  parte  (57),  94. 
Kinney  v.  Com.  (42),  84;   (56), 

93. 
Kipper  v.  Texas   (52),  251. 


364 


TABLE   OF   CASES   CITED 


Knox  v.  Board  of  Education  of 

Independence  (112),  183. 
Ky.  v.  Jackson   (50),  250. 


L.  &  N.  Ry.  Co.  T.  Catron  (51 ), 

223. 
L.  &  N.  Ry.  Co.  v.  Com.  of  Ky. 

(55),  226. 
L.  N.  O.  &  T.  Ry.  Co.  v.  State 

(42),  217;    (43),  218. 
La.  v.  Casey    (50),  250. 
La.  v.  Joseph    (50),  250. 
La.  v.  Murray   (50),  250. 
Lane  v.  Baker   (23),  167. 
Leach  v.  Texas   (53),  251. 
Lehew  v.  Brummell  (155),  192. 
Lewis  v.  Henley   (25),  167. 
Lewis  v.  Hitchcock  (54),  127. 
Logwood  v.  M.  &   C.   Ry.   Co. 

(52),  224;  (53),  224. 
Lonas  v.  State  (63),  97. 
Lord  v.  Ala.  (62),  274. 

M 

MeAlpine  v.  State  (45),  88. 
McDowell  v.  Bowles  (4),  27. 
McDowell  v.  Sapp  (30),  74. 
McMillan  v.  School  Com.  (31), 

17. 

McPherson's  Case  (21),  15. 
McPherson  v.  McCarrick   ( 57 ) , 

252. 
Marshall     v.     Donovan     (173), 

196. 
Martin  v.  Board  of  Education 

of  Morgan  Co.   (137),  186. 
Martin  v.  Texas  (50),  250. 


Medway  v.  Needham   (59),  94. 
Messenger  v.  State  (59),  129. 
Mills  v.  Green  (65),  314. 
Minor  v.  Happersett  (47),  294. 
Minor  v.  Jones  (31),  74. 
Mo.  v.  Brown   (50),  250. 
Monroe  v.  Collins   (24),  16. 
Murphy   v.    W.   &   A.   Ry.   Co. 

(52),  224. 
Murray,  ex  parte  (48),  250. 

N 

N.  C.  v.  Daniels  (50),  250. 
N.  C.  v.  Peoples'  (50),  250. 
N.  C.  v.  Sloan  (50),  250. 
Neal  v.  Del.   (48),  250. 
Norwood  v.  G.  H.  &  S.  A.  Ry. 
Co.  (54),  224. 


O 

0.    Val.    Ry.    Rec.    v.    Lander 
(42),  217;    (45),  218. 


Pace  v.  Ala.   (62),  274. 

Pace  and  Cox  v.   State    (61), 

273. 

Parker  v.  Texas  (50),  250. 
People  v.  Board  of   Education 

of  Quincy  (95),  179. 
People  v.   Board  of  Education 

of  Upper  Alton  (96),  179. 
People  v.  Dean  (22),  15. 
People  v.  Easton   (120),  185. 
People   v.    Gallagher    (8),   29; 

(121),  185. 
People  v.  King  (77),  136. 


365 


TABLE   OF   CASES    CITED 


People  v.  Mayor,  etc.,  of  City 
of  Alton  (97),  180;  (99), 
180. 

People  v.  School  Board  of  Bor- 
ough of  Queens  (122),  185. 

People  v.  Washington  (28), 
245. 

Pierce  v.  Union  Dist.  Sch.  Trus- 
tees (117),  184. 

Pierre  v.  Fontennette  (17),  72. 

Pleasant  v.  N.  B.  &  M.  Ry.  Co. 
(15),  212. 

Plessy  v.  Ferguson  (42),  217; 
(52),  224. 

Poindexter  v.  Greenhow  (68), 
316. 

Pruitt  v.  Gaston  Co.  Commis- 
sioners (181),  198. 

Pullman-Palace  Car  Co.  v.  Cain 
(48),  220. 

R 

Ratliff  v.  Beale   (49),  295. 
Reynolds  v.  Board  of  Education 

of  Topeka  (111),  183;  (157), 

192. 

Rhone  v.  Loomis    (63),   132. 
Riggles    v.    City    of    Durham 

(181),  198. 
Roberts  v.  The  City  of  Boston 

(26),  167. 

Rogers  v.  Ala.   (47),  249. 
Rowles  v.  Board  of  Education 

of  Wichita   (112),  183. 
Russ's  Application   (50),  125. 
Ry.  Co.  v.  Brown  (18),  213. 

S 

S.  C.  v.  Brownfield  (50),  250. 
Scott  v.  Lairamore  (14),  71. 


Scott  v.  Sandford   (3),  8. 
Scott  v.  State  (8),  80. 
Selden  v.  Montague   (65).,  314. 
Slaughter-House     Cases      (10), 

107. 
Smith    v.     Chamberlain     (49), 

220. 
Smith  v.  Dirs.  of  the  Ind.  Sch. 

of  the  Dist.  of  Keokuk  ( 107) , 

183. 

Smith  v.  Ky.  (50),  250. 
Smith  v.  Moody  (7),  64. 
Smith  v.  State  (46), 219;  (48), 

250. 
Smith  v.  Texas  (50),  250;  (54), 

251;   (55),  251. 
So.  Ry.  Co.  v.  Thurman    (10), 

31. 

Spotarno  v.  Fourichon  (5),  27. 
Spraigue    v.    Thompson     (68), 

316. 
State  ex  rel.  Tax  Collector  v. 

Falkenheimer   (66),  133. 
State    v.    Bell    (1),    78;     (55), 

92. 
State  v.  Board  of  Education  of 

Cincinnati   (156),  192. 
State  v.  Board  of  Education  of 

Oxford   (128),  185. 
State    v.    City    of    Cincinnati 

(20),  166. 

State  v.  Duffy   (115),  184. 
State  v.  Gibson  (60),  96. 
State  v.  Grubbs  (104),  182. 
State  v.  Hairston   (63),  97. 
State  v.  Kennedy   (2),  78. 
State  v.  Lasater   (28),  117. 
State  v.  Mitchell  (105),  183. 
State  v.  Patterson   (71),  233. 
State  v.  Ross  (2),  78. 


366 


TABLE   OF   CASES   CITED 


State  v.  Tutty  (58),  94. 
Stewart,  of  color,  v.  Munchan- 

dler    (13),  71. 

Stewart  v.  Southard  (19),  166. 
Stikes  v.  Swanson  (21),  73. 
Strauder  v.  W.  Va.  (47),  249. 


Taylor,  in  re   (4),  239. 
"The  Sue"  (27),  216. 
Thomas  v.  Williams   (75),  136. 
Thompson  v.  Texas   (56),  251. 
Thurman  v.  State  (28),  16. 
Turner,  in  re    (57),   57;    (6), 
106. 

U 

Upton  v.  Times-Democrat  Pub. 

Co.    (6),  28. 
United  States  v.  Canter    (38), 

292. 
United  States  v.  Crosby    (39), 

292. 
United    States    v.    Cruikshank 

(43),  293. 
United  States  v.  Dodge    (21), 

214;    (52),  224. 
United   States   v.   Given    (42), 

293. 
United     States     v.     Newcomer 

(49),   124. 
United    States    v.     Petersburg 

(Va.)     Judges     of    Election 

(44),  293. 
United   States   v.   Reese    (37), 

291;    (48),  294. 
United   States  v.   Rhodes    (5), 

106;    (6),  242. 


Va.,  ex  parte   (47),  249. 
Va.  v.  Rives  (47),  249. 
Van  Camp  v.  Board  of  Educa- 
tion of  Logan   (22),  J.66. 

W 

Walden  v.  Vicksburg  Ry.  and 
Light  Co.  (70),  231. 

Walker  v.  Brockway   (23),  16. 

Ward  v.  Flood  (86),  177. 

Warren,  ex  parte    (23),  244. 

Washington  v.  Washington 
(20),  73. 

West  Chester  and  Phila.  Ry. 
Co.  v.  Mills  (14),  212;  (52), 
224. 

Whitney  v.  Texas  (51),  250. 

Whitney  v.  Texas   (59),  252. 

Williams  v.  Board  of  Educa- 
tion of  Fairfax  Dist.  (137), 
186. 

Williams  v.  Board  of  Educa- 
tion of  Parsons  (111),  183. 

Williams  v.  Directors  of  Sch. 
Dist.  No.  6  (16),  165. 

Williams  v.  Miss.   (64),  314. 

Williams  v.  State  (6),  69. 

Williams  v.  Texas  (50),  250. 

Wilson  v.  Ga.  (50),  250. 

Wolfe  v.  Ry.  Co.  (9),  31. 

Wood  v.  King   (2),  27. 

Wysinger  v.  Crookshank  (88), 
178. 


Yarborough,  ex  parte  (46) ,  293. 
Younger  v.  Judah  (74),  136. 


367 


INDEX 


Accommodations,  equality  of, 
in  schools,  192-194;  nature 
of,  under  "  Jim  Crow  "  laws, 
223-224. 

Adultery  and  fornication  be- 
tween Negro  and  White,  pun- 
ishment for,  273. 

"  African  "  as  race  name,  20. 

Africans,  naturalization  of, 
297. 

"  Afro-American  "  as  race  name, 
20. 

Age  as  a  qualification  for  vot- 
ing, 297. 

Alabama,  limitations  in,  upon 
Negroes  in  respect  to  occupa- 
tions, 41-42;  sale  of  drugs 
by  free  Negroes  prohibited 
in,  42;  separation  of  paupers 
by  race  in,  47;  apprentice 
laws  in,  53;  slave  marriages 
legal  in,  by  statute,  73;  ef- 
fect of  attempted  intermar- 
riage in,  84;  punishment  in, 
for  issuing  license  for  inter- 
marriage, 86;  for  performing 
ceremony,  87;  for  cohabita- 
tion without  intermarriage, 
88;  separation  of  races  in, 


in  prisons,  146;  in  asylums 
for  deaf  and  blind,  148;  in 
public  schools,  170;  division 
of  public  school  fund  between 
races  in,  195;  Negroes  as 
witnesses  in,  242 ;  actual  serv- 
ice by  Negroes  on  juries  in, 
253-264;  qualifications  for 
voting  in,  322-323. 

Alaska,  qualifications  for  vot- 
ing in,  338-339. 

Albany,  N.  Y.,  separation  of 
races  in  schools  of,  185. 

Aliens  as  voters,  296-297. 

Alton,  111.,  separation  of  races 
in  schools  of,  180. 

Amalgamation,  between  race 
elements  in  United  States, 
12;  race  line  blurred  by,  12. 
See  Intermarriage,  Miscege- 
nation. 

Amendments  to  Federal  Consti- 
tution, purpose  of  first  ten, 
102.  See  Constitutionality, 
Suffrage. 

Anderson,  Charles  W.,  on  prop- 
er name  for  Negro,  23. 

Apprentice  laws  applying  to 
Negroes,  53-58;  in  Alabama, 
53;  in  Kentucky,  53;  in 
North  Carolina,  53;  in  Mis- 


25 


369 


INDEX 


sissippi,  53-55;  in  South 
Carolina,  55-57;  in  Dela- 
ware, 57 ;  constitutionality 
of,  57. 

Arizona,  selling  liquor  and  fire- 
arms to  Indians  prohibited 
in,  45;  effect  given  to  mar- 
riages in  other  States  by,  93 ; 
separation  of  races  in  schools 
of,  187;  qualifications  for 
voting  in,  338-339. 

Arkansas,  slave  marriages  le- 
gal in,  by  statute,  73;  pun- 
ishment in,  for  performing 
ceremony  of  intermarriage, 
87;  civil  rights  legislation 
in,  116;  Negroes  in  militia 
in,  145;  separation  of  races 
in  prisons  of,  146;  in  schools 
of,  170;  Negroes  as  witness- 
es in,  242;  early  statute  in, 
on  Negro  jury  service,  249; 
actual  service  by  Negroes  on 
juries  in,  254-255;  qualifi- 
cations for  voting  in,  322- 
323. 

Arnett,  Benjamin  W.,  excluded 
from  hotels  in  Boston,  126. 

Asheville,  N.  C.,  suits  in,  over 
mistakes  in  race  designation 
in  directory,  32. 

Asylums,  separation  of  races 
in,  148. 

Atlanta,  Ga.,  separation  of 
races  in  saloons  of,  133. 


B 


Baker,  Ray  Stannard,  "  Follow- 
ing the  Colour  Line,"  6;    on 


intermarriage  in  North,  99; 
on  race  discrimination  by  la- 
bor unions,  140. 

Baptist  denomination,  race  dis- 
tinctions in,  141. 

Barber  shops,  race  distinctions 
in,  129-130. 

Berea  College,  separation  of 
races  in,  154-159. 

Billiard  rooms,  race  distinc- 
tions in,  131-132. 

"  Black  Laws,"  of  1865-68,  35- 
63 ;  of  free  States,  36-39 ;  ex- 
cuse for  Reconstruction  re- 
gime, 62-63. 

Black  man,  proper  name  for,  in 
America,  20-24. 

"  Blacks  "  as  race  name,  21. 

Blind,  in  asylums,  separated  by 
race,  147. 

Boarding  houses.  See  Restau- 
rants. 

Bootblack  stands,  race  distinc- 
tions at,  130-131. 

Borough  of  Queens,  N.  Y.,  sepa- 
ration of  races  in  schools  of, 
185. 

Boston,  intermarriage  in,  98; 
race  distinctions  in  hotels  of, 
126;  separation  of  races  in 
public  schools  of,  before  1857, 
167-170;  separation  of  races 
on  steamers  plying  between 
South  and,  215-216. 

Bowen,  J.  W.  E.,  on  proper 
name  for  Negro,  20,  23. 

British  Columbia,  separation  of 
races  in  schools  of,  163. 

Brooks,  Walter  H.,  on  proper 
name  for  Negro,  23. 


370 


INDEX 


Brownsville,  Texas,  and  Negro 

militia,  144. 
Bryce,  James,  on  effect  of  Dred 

Scott  decision,  8. 
Buffalo,    N.    Y.,    separation    of 

races  in  schools  of,  185. 


Caboose  cars  not  under  "  Jim 
Crow"  laws,  221. 

Cafe's.     See  Restaurants. 

California,  race  distinctions  at 
skating  rinks  in,  136;  sepa- 
ration of  races  in  schools 
of,  159-163;  of  Whites  and 
Negroes  in  public  schools 
of,  177-178;  Mongolians  and 
Indians  as  witnesses  in, 
245;  qualifications  for  vot- 
ing in,  322-323.  See  Japa- 
nese. 

Canady,  E.  W.,  on  Negro  as 
lawyer,  241. 

Capitalization  of  "  Negro "  as 
race  name,  21-22,  24. 

Cemeteries,  race  distinctions  in, 
136-137. 

Ceremony  of  intermarriage, 
punishment  for  performing, 
87-88. 

Certificates  of  slave  marriages, 
70-73;  in  Kentucky,  70-72; 
in  Louisiana,  72;  in  Mary- 
land, 72. 

Character  as  qualification  for 
voting,  308-310. 

Cheshire,  Joseph  Blount,  on 
separation  of  races  in  Epis- 
copal Church,  143-144. 


Chicken-stealing  a  felony,  275. 

Chinese,  intermarriage  of,  with 
Whites,  82-83 ;  separate 
schools  for,  in  California, 
159 ;  as  witnesses  in  Califor- 
nia, 245. 

Chinese  Exclusion  Act,  296. 

Chop-houses.     See  Restaurants. 

Churches,  race  distinctions  in, 
141-144. 

Citizenship  as  a  qualification 
for  voting,  296-297. 

Civil  rights  of  Negroes,  102- 
149;  Civil  Rights  Bill  of 
1866,  9,  10,  104,  106;  Civil 
Rights  Bill  of  1875,  10,  108- 
111,  247-248;  Civil  Rights 
Cases,  110-111;  civil  rights 
legislation,  Federal,  103-111; 
in  States,  between  1865  and 
1883,  111-120;  in  Northern 
States,  between  1865  and 
1883,  112-115;  in  South, 
after  1883,  120;  in  States 
outside  South,  after  1883, 
120-124 ;  in  Massachusetts, 
112;  in  Delaware,  112-114, 
118;  in  Kansas,  114;  in  Flor- 
ida, 115;  in  New  York,  115; 
in  Arkansas,  116;  in  Louisi- 
ana, 116;  in  Tennessee,  116- 
118;  in  North  Carolina,  118- 
120;  State  Civil  Rights  Bills, 
table  of,  122;  penalty  for 
violating,  123;  construed, 
137-138.  See  Barber  Shops, 
Billiard  Rooms,  Bootblack 
Stands,  Cemeteries,  Convey- 
ances, Hotels,  Restaurants, 
Saloons,  Schools,  Skating 


371 


INDEX 


Rinks,  Soda  Fountains,  and 
Theatres. 

Cohabitation  of  Negroes  and 
Whites  without  intermar- 
riage, 88 ;  constitutionality 
of  laws  against,  89. 

Colonies,  race  distinctions  in,  7. 

Colorado,  effect  of  intermar- 
riage in,  84;  punishment  in, 
for  issuing  license,  86;  for 
performing  ceremony,  87 ; 
race  distinctions  in  churches 
prohibited  in,  141 ;  separa- 
tion of  races  in  schools  for- 
bidden in,  187;  statute  as  to 
Negroes  practicing  law  in, 
239;  qualifications  for  voting 
in,  322-323. 

"  Colored "  required  on  street 
cars,  231. 

"  Colored  Persons "  as  race 
name,  20. 

Conductors,  of  trains,  punish-  , 
ment  of,  for  violating  "  Jim 
Crow"  laws,  225-226;  on 
street  cars,  special  policemen 
to  enforce  "  Jim  Crow  "  laws, 
231. 

Connecticut,  race  distinctions 
in,  in  barber  shops,  129;  by 
insurance  companies,  138- 
139;  Negroes  in  militia  in, 
145;  qualifications  for  vot- 
ing in,  322-323. 

Constitutionality  of  apprentice 
laws,  57 ;  of  laws  against  co- 
habitation without  intermar- 
riage, 89;  of  laws  against  in- 
termarriage, 95-97;  of  law 
separating  races  in  Berea  Col- 


lege, 157-159;  of  California 
separate  school  law,  161;  of 
laws  separating  races  in  pub- 
lic schools,  181;  of  exemp- 
tions in  street  car  laws,  233; 
of  Federal  statute  as  to  ju- 
rors, 249-250;  of  Southern 
Suffrage  Amendments,  313- 
317. 

Contracts  for  labor  by  Negroes, 
46-53;  in  Florida,  46;  in 
Virginia,  47;  in  Mississippi, 
47 ;  in  Kentucky,  47 ;  in 
South  Carolina,  48-53. 

Conveyances,  public,  separation 
of  races  in,  207-233.  See 
"  Jim  Crow  "  laws. 

"  Coon,"  a  term  of  contempt, 
20. 

Cotton,  bagging  off,  at  night, 
a  crime,  275. 

Court  room,  Negro  in,  237-277. 
See  Judges,  Jurors,  Lawyers, 
Spectators,  Witnesses. 

Courts,  separate,  for  Negroes, 
272-273. 

Croatan  Indians,  intermarriage 
of,  with  Negroes  prohibited, 
90;  separate  schools  for,  174. 

Curfew  law  for  Negroes  in  Mo- 
bile, Ala.,  276. 


D 

Dakota  Territory,  selling  liquor 
to  Indians  prohibited  in,  45 ; 
"  white  "  stricken  from  elec- 
tion laws  of,  286. 

Dare,  Virginia,  and  Lost  Col- 
ony, 90-91. 


373 


INDEX 


"  Darkies  "  as  race  name,  20. 

Defamation  to  call  a  white  per- 
son a  Negro,  26-33;  action- 
able per  se,  32. 

Delaware,  "  Black  Laws "  of, 
37;  apprentice  laws  of,  57; 
effect  of  intermarriage  in, 
87;  effect  given  to  marriages 
in  other  States  in,  92;  civil 
rights  legislation  in,  112- 
114;  provisions  for  public 
schools  for  Negroes  in,  169; 
separation  of  races  in  public 
schools  of,  178;  "Jim  Crow" 
legislation  in,  211;  intimida- 
tion of  Negroes  at  polls  in, 
293;  qualifications  for  vot- 
ing in,  324-325. 

Dependents,  State,  separated  by 
race,  146-149.  See  Asylums, 
Blind,  Lunatic,  Prisoners, 
Reformatories. 

Designation  of  race  separation 
under  "  Jim  Crow "  laws, 
225. 

Detroit,  Mich.,  race  distinctions 
in  restaurants  of,  127. 

Dickinson,  Secretary  of  War, 
on  suffrage  in  Porto  Rico, 
313. 

Discriminations,  race,  and  dis- 
tinctions contrasted,  2-4, 
348-362.  See  Distinctions. 

Disfranchisement,  extent  of  ac- 
tual, in  South,  320-321.  See 
Suffrage. 

Distinctions,  race,  denned,  1 ; 
contrasted  with  race  discrim- 
inations, 2-4,  348-362;  ac- 
tual and  legal,  contrasted,  5; 


in  Colonies,  7 ;  in  hotels,  124- 
127;  in  restaurants,  127-129; 
in  barber  shops,  129-130;  at 
bootblack  stands,  130-131; 
in  billiard  rooms,  131-132; 
at  soda  fountains,  133-134; 
in  saloons,  132-133;  in  thea- 
tres, 134-136;  at  skating 
rinks,  136;  in  cemeteries, 
136-137;  by  insurance  com- 
panies, 138-140;  in  churches, 
141;  in  punishments,  273- 
277;  in  vagrancy  laws,  275; 
not  confined  to  one  section, 
348-350;  not  confined  to  one 
race,  350-351;  not  decreas- 
ing, 351-353;  not  based 
on  race  superiority,  353- 
354;  proper  place  of,  356- 
358. 

District  of  Columbia,  inter- 
marriages in,  93;  separate 
schools  in,  189-190;  suffrage 
in,  286. 

Division  of  public  school  fund 
between  races,  194-199. 

E 

East  Orange,  N.  J.,  separate 
classes  for  white  and  Negro 
children  in  public  schools  of, 
184-185. 

East  St.  Louis,  111.,  burning 
school  building  in,  to  prevent 
Negro  school,  180. 

Eating  houses.  See  Restau- 
rants. 

Education  Association,  South- 
ern, on  race  problem,  356;  on 


373 


INDEX 


curricula  for  Negro  schools, 
360. 

Educational  test  as  qualifica- 
tion for  voting,  301-315.  See 
Suffrage. 

Effect  given  by  one  State  to 
marriages  between  Whites 
and  Negroes  in  other  States, 
92-95. 

Eggleston,  J.  D.,  Jr.,  on  pro- 
portion of  public  school  fund 
in  Virginia  contributed  by 
Negroes,  195. 

Elements,  race,  in  United 
States,  6. 

Eliot,  Charles  W.,  on  separa- 
tion of  races  in  schools,  163- 
164. 

Emancipation  Proclamation  as 
military  expedient,  8. 

Emmanuel  Magazine  on  Ne- 
groes as  lawyers,  240. 

Employees  of  railroad,  "  Jim 
Crow  "  laws  do  not  apply  to, 
222-223. 

"  Enforcement  Act "  of  1870, 
290-291. 

Episcopal  Church,  separation 
of  races  in,  143-144. 

Equality  of  accommodations  in 
public  schools,  192-194;  in 
public  conveyances,  223-224. 
See  Schools,  Conveyances, 
"  Jim  Crow  "  laws. 

Evidence  admitted  as  presump- 
tion of  race,  17. 

Exemptions  from  application  of 
"Jim  Crow"  laws,  222,  232. 

Extent  of  separation  of  races 
on  railroad  cars,  216;  on 


street  cars,  228-229;  of  ac- 
tual disfranchisement  of  Ne- 
groes, 320-321.  See  "Jim 
Crow  "  laws,  Suffrage. 
Extra  cars,  "  Jim  Crow  "  laws 
do  not  apply  to,  221. 


Federal  legislation  on  slave 
marriages,  75 ;  on  civil  rights 
of  Negroes,  103-111;  on  sepa- 
rate schools,  189-190. 

Fifteenth  Amendment,  ratified, 
10;  and  Negro  suffrage,  281- 
282;  and  Oregon,  289;  and 
Maryland,  317-320.  See  Suf- 
frage. 

Firearms,  sale  of,  to  Negroes 
prohibited,  43-44;  in  Flori- 
da, 43;  keeping  of,  by  Ne- 
groes in  Mississippi  prohib- 
ited, 44;  keeping  of,  by  Ne- 
groes in  South  Carolina  lim- 
ited, 44;  selling  of,  to  In- 
dians in  Oregon  prohibited, 
45;  carrying  of,  limited  to 
Whites  in  Oregon,  45 ;  '  sell- 
ing of,  to  Indians  prohibited 
in  Arizona,  45. 

Flack,  Horace  E.,  on  contem- 
porary understanding  of 
Civil  Rights  Bill  of  1866, 
106;  on  purpose  of  adoption 
of  Fourteenth  Amendment, 
107. 

Florida,  sale  of  firearms  to 
Negroes  prohibited  in,  43; 
contracts  for  labor  by  Ne- 
groes in,  46;  remarriage  of 


374 


INDEX 


Negroes  in,  68;  effect  of  in- 
termarriage in,  84;  punish- 
ment in,  for  issuing  license 
for  intermarriage,  86;  for 
performing  ceremony,  87;  for 
cohabitation  without  inter- 
marriage, 88 ;  civil  rights 
legislation  in,  115;  race  dis- 
tinctions in  cemeteries  in, 
136;  separation  of  races  in 
schools  of,  170;  in  private 
schools  of,  190;  early  "Jim 
Crow  "  laws  in,  208 ;  Negroes 
as  witnesses  in,  243;  actual 
jury  service  by  Negroes  in, 
255-256 ;  different  punish- 
ments for  Negroes  in,  274; 
qualifications  for  voting  in, 
324-325. 

Foraker,  Senator,  on  Browns- 
ville affair,  145. 

Fornication  and  adultery  be- 
tween Negro  and  White,  pun- 
ishment for,  273.  See  Pun- 
ishments. 

Fourteenth  Amendment,  rati- 
fied, 9;  and  intermarriage, 
97;  superseding  Civil  Rights 
Bill  of  1866,  106;  interpret- 
ed by  Slaughter-House  cases, 
107-108;  and  Berea  College 
affair,  157-158;  and  Negro 
jury  service,  252;  and  Negro 
suffrage,  287.  See  Civil 
Rights,  "  Jim  Crow  "  laws. 

Free  Negroes,  marriage  be- 
tween, and  slaves,  74.  See 
Negroes,  Marriage,  Move- 
ments, "  Black  Laws,"  Civil 
Rights. 


G 

Genealogical  table  in  determin- 
ing race,  18. 

Georgia,  remarriage  of  Negroes 
in,  69;  social  status  not  a 
subject  of  legislation  in,  80; 
effect  given  by,  to  marriages 
in  other  States,  93;  Negroes 
in  militia  in,  145;  separation 
of  prisoners  by  race  in,  146; 
separation  of  races  in  reform- 
atories of,  147;  in  public 
schools  of,  170;  Negroes  as 
witnesses  in,  243;  actual 
service  by  Negroes  on  juries 
in,  256-258 ;  qualifications 
for  voting  in,  324-325. 

Germantown,  Pa.,  Guide  on 
cemeteries  for  Negroes,  137. 

"  Grandfather  Clauses "  as 
qualifications  for  voting, 
305-308.  See  Suffrage. 


Harvard  University,  Dr.  Chas. 
W.  Eliot  on  separation  of 
races  at,  164;  study  of  race 
problem  at,  356. 

Hawaii,  qualifications  for  vot- 
ing in,  338-339. 

High  Schools,  for  Whites  and 
not  for  Negroes,  193;  no 
separation  of  race  in,  of  In- 
diana, 182;  of  Kansas,  183. 
See  Schools. 

Hotels,  race  distinctions  in, 
124-127. 

Hurd,  John  Codman,  "  The  Law 


375 


INDEX 


of  Freedom'  and  Bondage  in 
the  United  States,"  8. 


Idaho,  selling  firearms  to  In- 
dians prohibited  in,  45;  sepa- 
ration of  races  in  public 
schools  of,  forbidden,  187; 
qualifications  for  voting  in, 
324-325. 

Identity,  race,  mistaken  on 
cars,  29-32. 

Illinois,  "Black  Laws"  of,  38; 
slave  marriages  in,  legal  by 
statute,  74;  race  distinctions 
in,  at  soda  fountains,  133; 
in  theatres,  135;  at  skating 
rinks,  136;  separation  of 
races  in  public  schools  of, 
178-179;  qualifications  for 
voting  in,  324-325. 

Indiana,  "Black  Laws"  in,  37; 
effect  of  intermarriage  in, 
84;  punishment  in,  for  per- 
forming ceremony  of  inter- 
marriage, 87;  race  distinc- 
tions in  hotels  in,  125;  sepa- 
ration of  races  in  orphan 
asylums  in,  148-149;  in 
schools  of,  before  1865,  167; 
in  public  schools  of,  181; 
Negroes  as  witnesses  in,  245; 
qualifications  for  voting  in, 
326-327. 

Indians,  selling  firearms  to, 
prohibited,  45;  in  Arizona, 
45;  in  Idaho,  45;  selling 
liquor  to,  prohibited,  45-46; 
in  Arizona,  45;  in  New  Mex- 


ico, 45;  in  Nebraska,  45;  in 
Dakota  Territory,  45;  in 
Idaho,  45;  in  Maine,  46;  in 
Utah,  45;  in  Washington, 
45 ;  intermarriage  between 
Whites  and,  82;  between 
Croatan  Indians  and  Ne- 
groes, 90;  separate  schools 
for,  allowed  in  California, 
159;  as  witnesses  in  Califor- 
nia, 245;  in  Virginia,  245; 
in  Washington,  246. 

Indictments  quashed  because 
no  Negroes  on  jury,  250- 
252. 

Insular  possession  of  United 
States,  suffrage  in,  312-313. 

Insurance  companies,  race  dis- 
tinctions by,  138-140. 

Intermarriage,  and  miscegena- 
tion, 78-99;  during  Recon- 
struction, 78-80 ;  between 
Whites  and  "  Persona  of 
Color,"  81;  present  state  of 
the  laws  on,  81;  to  whom 
laws  apply,  81-83;  between 
Chinese  and  Whites,  82-83; 
between  Indians  and  Whites, 
82-83 ;  between  Kanakans 
and  Whites,  83;  between 
Mongolians  and  Whites,  82- 
83;  effect  of  attempted,  83- 
84;  punishment  for,  84-86; 
punishment  for  issuing  li- 
cense for,  86-87;  punishment 
for  performing  ceremony  of, 
87-88 ;  repeal  of  laws  against, 
89-90;  and  Federal  Consti- 
tution, 95-97;  and  Four- 
teenth Amendment,  97;  in 


376 


INDEX 


Boston,  98 ;  at  Xenia,  O.,  99 ; 
in  North,  99. 

Interstate  travel  and  "  Jim 
Crow"  laws,  217-219. 

Intimidation  of  Negroes  at 
polls,  291-294. 

Iowa,  "  Black  Laws "  in,  38 ; 
race  distinctions  in  boarding 
houses  in,  128;  at  skating 
rinks  in,  136;  separation  of 
races  in  public  schools  of, 
not  allowed,  183 ;  in  steam- 
boats in,  212;  statute  as  to 
Negroes  practicing  law  in, 
239;  "white"  stricken  from 
Constitution  of,  286 ;  qualifi- 
cations for  voting  in,  326- 
327. 


Japanese,  excluded  from  public 
schools  of  San  Francisco, 
159-163;  census  of,  to  be 
taken  in  California,  163. 

"  Jim  Crow "  laws,  origin  of 
term,  208;  legislation  be- 
tween 1865  and  1881,  211- 
214;  as  applied  to  interstate 
travel,  217-219;  means  of 
separation  of  races,  224;  des- 
ignation of  separation  of 
races,  225;  punishment  for 
violating  laws,  225-226.  See 
Conveyances. 

Johnson,  E.  A.,  on  proper  name 
for  Negro,  22. 

Joyner,  J.  Y.,  on  proportion  of 
public  school  fund  in  North 
Carolina  contributed  by  Ne- 
groes, 194. 


Judges,  Negroes  as,  238. 

Jurors,  Negroes  as,  247-272; 
jury  service  and  Civil  Rights 
Bill  of  1875,  247-248;  State 
statutes  on  jury  service,  248; 
actual  jury  service  by  Ne- 
groes in  South,  253-271. 


Kanakans,  term  defined,  25;  in- 
termarriage between,  and 
Whites,  83. 

Kansas,  civil  rights  legislation, 
114;  race  distinctions  in 
cemeteries,  136;  separation 
of  race  in  public  schools  of 
cities  of  first  class,  183;  in- 
timidation of  Negroes  at 
polls,  292;  qualifications  for 
voting,  326-327. 

Kentucky,  movements  of  Ne- 
groes restricted  in,  40 ;  selling 
liquor  to  Negroes  prohibited 
in,  44;  contracts  for  labor 
by  Negroes  in,  47;  appren- 
tice laws  in,  53;  certificates 
of  slave  marriages  in,  70-72; 
separation  of  lunatics  by 
race  in,  148;  separation  of 
races  in  private  schools  of, 
154-155;  in  public  schools 
of,  171;  local  taxation  for 
schools  of,  196-197;  Negroes 
as  witnesses  in,  242-243;  ac- 
tual service  by  Negroes  on 
juries  in,  258;  different 
punishments  for  Negroes 
in,  274;  punishment  for 
chicken- stealing  in,  275; 


377 


INDEX 


qualifications  for  voting  in, 
326-327. 

Kitchin,  W.  W.,  on  Negro  suf- 
frage in  North  Carolina  in 
1835,  283. 

Knox,  John  B.,  on  suffrage, 
361. 


Labor,  contracts  for,  by  Ne- 
groes, 46-53;  in  Florida,  46; 
in  Kentucky,  47;  in  Missis- 
sippi, 47;  in  Virginia,  47; 
in  South  Carolina,  48-53. 

Labor  unions,  race  discrimina- 
tion by,  140-141. 

Lawyers,  Negroes  as,  239-241. 

Legitimacy  of  children  of  slave 
marriages,  67-75.  See  Mar- 
riages. 

License,  punishment  for  issu- 
ing, for  intermarriage,  86-87. 

Limitations  upon  Negroes  in 
respect  to  occupations,  41-43. 

Lincoln,  Neb.,  race  distinctions 
in  barber  shops  in,  129. 

Liquor,  sale  of,  to  free  Negroes 
prohibited,  43-44;  in  Ken- 
tucky, 44;  in  Mississippi, 
44;  sale  of,  to  Indians  pro- 
hibited, 45-46;  in  Arizona, 
45;  in  Dakota  Territory,  45; 
in  Idaho,  45;  in  Nebraska, 
45;  in  Utah,  45;  in  Wash- 
ington, 45;  in  Maine,  46. 

Lost  Colony  and  Virginia  Dare, 
90-91. 

Louisiana,  certificates  of  slave 
marriages  in,  72;  punish- 
ment in,  for  cohabitation 


without  intermarriage,  89 ; 
civil  rights  legislation  in, 
116;  separation  of  races  in 
saloons  in,  133;  race  distinc- 
tions in  theatres  in,  135; 
separation  of  races  in  schools 
of,  during  Reconstruction, 
171;  at  present,  172;  race 
distinctions  on  public  con- 
veyances in,  213;  early  stat- 
ute on  Negro  jury  service  in, 
249;  actual  service  by  Ne- 
groes on  juries  in,  258-259; 
intimidation  of  Negroes  at 
polls  in,  293;  qualifications 
for  voting  in,  326-327. 

Lucas  County,  O.,  race  distinc- 
tions in  restaurants  in,  128. 

Lunatics,  separated  by  race, 
147. 

Lunch  counters.  See  Restau- 
rants. 

Lynch,  James,  body  of,  removed 
from  white  to  Negro  ceme- 
tery, 137. 

M 

Machen,  A.  W.,  Jr.,  on  Fif- 
teenth Amendment,  319. 

Maine,  sale  of  liquor  to  Indians 
prohibited  in,  46;  repeal  of 
law  against  intermarriage  of 
Negroes  and  Whites  in,  90; 
qualifications  for  voting  in, 
328-329. 

Marital  relations  of  slaves 
fixed,  67-75. 

Marriages,  slave,  certificates  of, 
70-73;  in  Kentucky,  70-72; 
in  Louisiana,  72;  in  Mary- 


378 


INDEX 


land,  72;  legal  by  statute, 
73-74;  in  Alabama,  73;  in 
Arkansas,  73;  in  Texas,  73; 
in  Illinois,  74;  in  Ohio,  74; 
in  Virginia,  74 ;  in  West  Vir- 
ginia, 74;  between  slaves  and 
free  Negroes,  74;  slave,  and 
Federal  legislation,  75;  be- 
tween Negroes  and  other  non- 
Caucasian  races,  90-91;  be- 
tween Negroes  and  Croatan 
Indians  in  North  Carolina, 
90;  effect  given  by  one  State 
to,  in  other  States,  92-95; 
marriage  a  status,  96. 

Maryland,  "  Black  Laws  "  in, 
36;  certificates  of  slave  mar- 
riages in,  72;  effect  of  inter- 
marriage in,  84;  separation 
of  races  in  public  schools  of, 
172-173;  and  Negro  lawyers, 
239;  Negroes  as  witnesses  in, 
243;  qualifications  for  vot- 
ing in,  328-329;  and  Fif- 
teenth Amendment,  317-320. 

Massachusetts,  civil  rights  leg- 
islation in,  112;  race  distinc- 
tions in  hotels  in,  125;  in 
barber  shops  in,  129;  in  bil- 
liard rooms  in,  131;  at  skat- 
ing rinks  in,  136;  by  insur- 
ance companies  in,  138;  reso- 
lution against  discrimination 
by  labor  unions  of,  140;  sepa- 
ration of  races  in  public 
schools  of,  before  1857,  167- 
170,  187;  gave  name  to  "  Jim 
Crow"  car,  208;  qualifi- 
cations for  voting  in,  328- 
329. 


Mathews,  John  Mabry,  on  Fif- 
teenth Amendment,  314-315. 

Means  of  separation  of  races 
under  "  Jim  Crow "  laws, 
224;  on  street  cars,  229- 
230. 

Metcalf,  Secretary,  on  separa- 
tion of  races  in  schools  of 
San  Francisco,  160. 

Methodist  Church,  race  distinc- 
tions in,  141. 

Michigan,  repeal  of  law  against 
intermarriage  in,  90;  race 
distinctions  by  insurance 
companies  in,  138,  139;  sepa- 
ration of  races  in  schools  of, 
187-188;  qualifications  for 
voting  in,  328-329. 

Militia  and  Negroes,  144-145. 

Milton,  Senator,  and  intermar- 
riage in  District  of  Colum- 
bia, 95. 

Milwaukee,  Wis.,  race  distinc- 
tions in  restaurants  in,  128. 

Minnesota,  race  distinctions  in 
saloons  in,  132;  separation 
of  races  in  schools  of,  for* 
bidden,  188;  qualifications 
for  voting  in,  328-329. 

Miscegenation,  not  a  bridge 
from  one  race  to  the  other, 
19;  and  intermarriage,  78- 
99.  See  Intermarriage,  Mar- 
riages. 

Mississippi,  limitations  upon 
Negroes  in  respect  to  occu- 
pations in,  43;  keeping  fire- 
arms by  Negroes  without  li- 
cense prohibited  in,  44;  sell- 
ing liquor  to  Negroes  prohib- 


379 


INDEX 


ited  in,  44;  contracts  for 
labor  by  Negroes  in,  47; 
apprentice  law  in,  53-55;  va- 
grancy law  in,  59-60;  pauper 
law  in,  61-62;  effect  of  in- 
termarriage in,  85;  effect 
given  to  marriage  in  other 
States  in,  93;  race  distinc- 
tions in  theatres  in,  134;  in 
cemeteries  in,  137 ;  no  dis- 
crimination against  prison- 
ers on  account  of  race  in, 
146;  separation  of  races  in 
public  schools  of,  173;  early 
"Jim  Crow"  law  in,  208; 
Negroes  as  witnesses  in,  243 ; 
early  statute  on  Negro  jury 
service  in,  249;  actual  serv- 
ice by  Negroes  on  juries  in, 
259;  qualifications  for  vot- 
ing in,  328-329. 

Missouri,  "  Black  Laws "  in, 
37;  remarriage  of  slaves  in, 
69;  effect  of  intermarriage 
in,  85;  race  distinctions  in 
theatres  in,  135;  separation 
of  races  in  schools  of,  173; 
actual  service  by  Negroes  on 
juries  in,  263-265;  chicken- 
stealing  a  felony  in,  275; 
qualifications  for  voting  in, 
330-331. 

Mobile,  Ala.,  curfew  law  for 
Negroes  in,  276. 

Mongolians,  intermarriage  be- 
tween Whites  and,  82-83; 
separate  schools  for,  permit- 
ted in  California,  159;  as 
witnesses  in  California,  245. 
See  Chinese,  Japanese. 


Montana,  qualifications  for  vot- 
ing in,  330-331. 

Movement  of  Negroes  restrict- 
ed, 40-41;  in  Kentucky,  40; 
in  South  Carolina,  40-41. 

Mulattoes,  difficulty  in  getting 
census  enumeration  of,  13; 
definition  of,  16;  separation 
of  Negroes  and,  in  churches, 
144.  See  Negroes. 

N 

Name,  proper,  for  Negro,  20- 
24. 

Narrow-gauged  roads,  "  Jim 
Crow  "  laws  do  not  apply  to, 
221. 

Nashville,  Tenn.,  separation  of 
races  in  saloons  in,  133. 

Nature  of  railroad  accommo- 
dations under  "  Jim  Crow  " 
laws,  223-224.  See  "Jim 
Crow  "  laws. 

Naturalization  of  Africans, 
297. 

Nebraska,  selling  liquor  to  In- 
dians prohibited  in,  45;  qual- 
ifications for  voting  in,  330- 
331. 

"  Negress,"  an  offensive  term, 
22. 

"  Negro-Americans "  as  race 
name,  22. 

"  Negroes  "  as  race  name,  20. 

Negroes,  legal  definition  of,  12- 
20;  defamation  to  call  Whites 
Negroes,  26-33 ;  movements 
of,  restricted,  40-41;  in  Ken- 
tucky, 40;  in  South  Caro- 
lina, 40-41 ;  limitations  upon, 


380 


INDEX 


in  respect  to  occupations, 
41-43;  prohibited  from  hav- 
ing firearms,  43-44;  in  Mis- 
sissippi, 44;  in  South  Caro- 
lina, limited,  44;  selling 
liquor  to,  prohibited,  44;  in 
Kentucky,  44;  in  Mississippi, 
44;  contracts  for  labor  by, 
46-53;  apprentice  laws  ap- 
plying to,  53-58;  marital  re- 
lations of,  fixed,  67-75;  re- 
marriages of,  after  Emanci- 
pation, 68-70;  in  Florida, 
68;  in  Georgia,  69;  in  Mis- 
souri, 69;  marital  relations 
of,  established  in  South  Caro- 
lina, 70;  marriages  between 
other  non-Caucasian  races 
and,  90-91;  civil  rights  of, 
102-149;  influence  of  Civil 
Rights  Bill  of  1866  upon  con- 
duct of,  105;  in  militia,  144- 
145;  in  court  room,  237-277; 
as  judges,  238;  as  lawyers, 
239-241;  as  witnesses,  246; 
as  jurors,  247-272;  jury 
service  of,  and  Fourteenth 
Amendment,  252;  actual  jury 
service  of,  in  South,  253-271; 
separate  courts  for,  272-273; 
suffrage  for,  281-289;  and 
Fifteenth  Amendment,  281- 
282;  in  New  York,  283;  in 
North  Carolina  before  1835, 
283;  in  Tennessee  in  1834, 
284;  before  1865,  282-285; 
between  1865  and  1870,  285- 
288;  and  Fourteenth  Amend- 
ment, 287;  between  1870  and 
1890,  288-294. 


Nevada,  effect  of  intermarriage 
in,  85;  punishment  in,  for 
performing  ceremony,  87 ;  for 
cohabitation  without  inter- 
marriage, 89;  separation  of 
races  in  public  schools  of, 
184;  Negroes  as  witnesses  in, 
246;  qualifications  for  voting 
in,  330-331. 

New  Hampshire,  qualifications 
for  voting  in,  330-331. 

New  Jersey,  Negroes  in  militia 
of,  145;  separation  of  races 
in  public  schools  of,  184; 
qualifications  for  voting  in, 
330-331. 

New  Mexico,  selling  liquor  to 
Indians  prohibited  in,  45;  re- 
peal of  law  against  intermar- 
riage in,  90;  separation  of 
races  in  public  schools  of, 
prohibited,  188 ;  qualifica- 
tions for  voting  in,  338-339. 

New  York,  slave  marriages  val- 
id in,  74;  civil  rights  legis- 
lation in,  115;  race  distinc- 
tions in  restaurants  in,  127; 
at  bootblack  stands  in,  130; 
in  cemeteries  in,  136;  at 
skating  rinks  in,  136;  in 
theatres  in,  136;  by  insur- 
ance companies  in,  138-139; 
separation  of  races  in  asy- 
lums of,  148 ;  in  public  schools 
of,  forbidden,  186;  Negro 
suffrage  in,  283;  qualifica- 
tions for  voting  in,  330-331. 

News  and  Courier,  Charleston, 
S.  C.,  sued  for  calling  white 
man  "colored,"  28. 


381 


INDEX 


r>"  a  term  of  contempt, 


20. 


Non-Caucasian  races,  marriage 
between,  and  Negroes,  90-91. 

North  Carolina,  apprentice  law 
of,  55;  effect  of  intermar- 
riage in,  85;  punishment  in, 
for  issuing  license  for  inter- 
marriage, 86;  for  performing 
ceremony,  87;  civil  rights 
legislation  in,  118-120;  sepa- 
ration of  races  in,  in  militia, 
145;  in  prisons,  147;  in  in- 
sane asylums,  148;  in  public 
schools,  173-174;  local  tax- 
ation for  schools  of,  198;  on 
steamboats,  214;  actual  serv- 
ice by  Negroes  on  juries  in, 
265-267;  Negro  suffrage  in, 
before  1835,  283;  qualifica- 
tions for  voting  in,  332-333. 

North  Dakota,  qualifications 
for  voting  in,  332-333. 

Northern  States,  intermarriage 
between  Whites  and  Negroes 
in,  99;  civil  rights  legisla- 
tion in,  between  1865  and 
1883,  112-115;  after  1883, 
120-124. 

Nurses,  exempt  from  "  Jim 
Crow"  laws,  222,  232. 


O 

Occupations,  limitations  upon 
Negroes  in  respect  to,  41- 
43;  in  Alabama,  41-42;  in 
South  Carolina,  42;  in  Mis- 
sissippi, 43;  in  Tennessee, 
43.  See  Contracts,  Labor. 


Officers  in  charge  of  prisoners 
exempt  from  "  Jim  Crow " 
laws,  222. 

Ohio,  "Black  Laws"  in,  37; 
slave  marriages  legal  in,  by 
statute,  74;  repeal  of  laws 
against  intermarriage  in,  90; 
race  distinctions  in,  in  sa- 
loons, 133;  by  insurance 
companies,  138,  139;  separa- 
tion of  races  in  public  schools 
of,  before  1865,  165-167;  for- 
bidden at  present,  185;  in- 
timidation of  Negroes  at 
polls  of,  292;  qualifications 
for  voting  in,  332-333. 

Oklahoma,  effect  of  intermar- 
riage in,  85;  punishment  in, 
for  issuing  license  for  inter- 
marriage, 86;  for  perform- 
ing ceremony,  87;  separation 
of  races  in  public  schools  of, 
174-175;  in  private  schools 
of,  191;  actual  service  by 
Negroes  on  juries  in,  267; 
qualifications  for  voting  in, 
332-333. 

Oregon,  "  Black  Laws  "  in,  38 ; 
carrying  of  firearms  restrict- 
ed to  Whites  in,  45;  effect 
of  intermarriage  in,  85;  pun- 
ishment for  performing  cere- 
mony in,  88;  and  Fifteenth 
Amendment,  289 ;  qualifica- 
tions for  voting  in,  332- 
333. 

Origin  of  "Jim  Crow,"  208. 
Ownership  of  property  as  quali- 
fication for  voting,  300-301. 
See  Suffrage. 


382 


INDEX 


Partitioned  cars  under  "  Jim 
Crow"  laws,  229. 

Passengers,  punishment  of,  for 
violating  "  Jim  Crow  "  laws, 
225;  separated  by  race  on 
street  cars,  227-233.  See 
"  Jim  Crow  "  laws. 

Paupers,  laws  concerning,  60- 
62;  in  South  Carolina,  60- 
61;  in  Mississippi,  61-62; 
separation  of,  by  race,  147. 

Payment  of  taxes  as  qualifica- 
tion for  voting,  299-300.  See 
Suffrage. 

Pennsylvania,  race  distinctions 
in  cemeteries  in,  137;  sepa- 
ration of  races  in  schools  of, 
prohibited,  186;  qualifica- 
tions for  voting  in,  332- 
333. 

"  Persons  of  African  Descent  " 
as  race  name,  20. 

"  Persons  of  Color "  as  race 
name,  20;  intermarriage  of, 
with  Whites,  81. 

Persons  to  whom  "  Jim  Crow  " 
laws  do  not  apply,  222-223; 
excluded  from  suffrage,  310- 
312. 

Philadelphia,  race  distinctions 
in  hotels  in,  124-125;  race 
discriminations  by  labor 
unions  in,  140;  separation 
of  races  in  street  cars  in, 
211. 

Philippine  Islands,  qualifica- 
tions for  voting  in,  338- 
339. 


Platform,  common,  on  race 
problem,  355-356. 

Polls,  intimidation  of  Ne- 
groes at,  291-294.  See  Suf- 
frage. 

Porto  Rico,  qualifications  for 
voting  in,  338-339. 

Postal  clerks  on  railroads,  not 
separated  by  race,  227. 

Presbyterian  Church,  race  dis- 
tinctions in,  141. 

Prisoners  separated  by  race, 
146-147. 

Private  schools,  separation  of 
races  in,  190-192. 

Problem,  race,  remedies  for, 
354;  common  platform  on, 
355-356. 

Proctor,  H.  H.,  on  proper  name 
for  Negro,  23. 

Property,  ownership  of,  as 
qualification  for  voting,  300- 
301.  See  Suffrage. 

Public  school  fund,  division  of, 
between  races,  194-199.  See 
Schools. 

Punishments,  for  intermar- 
riage, 84-86;  for  issuing 
license  for,  86-87;  for  per- 
forming ceremony  of,  87-88; 
for  cohabitation  without  in- 
termarriage, 88-89;  for  vio- 
lating Civil  Rights  Bills,  123; 
upon  insurance  companies  for 
making  race  distinctions, 
139;  for  violating  "Jim 
Crow"  laws,  225-226,  231; 
different,  for  Negroes  and 
Whites,  273-277 ;  made  equal 
by  statute,  275. 


383 


INDEX 


Q 

Qualifications  for  voting,  in 
United  States,  table  of,  322- 
339;  age,  297;  sex,  298; 
payment  of  taxes,  299-300; 
ownership  of  property,  300- 
301;  educational  test,  301- 
304;  "Grandfather  Clauses," 
305-308 ;  "  Understanding 
Clauses,"  308-310;  "Charac- 
ter Clauses,"  308-310;  per- 
sons excluded  from  suffrage, 
310-312. 

Quashing  indictments  because 
no  Negroes  on  jury,  250- 
252. 

Quincy,  111.,  separation  of  races 
in  public  schools,  179. 

R 

Race  elements  in  United  States, 
6. 

Railroads,  separation  of  races 
on  cars  of,  216-227;  punish- 
ment upon  companies  for  vio- 
lating "  Jim  Crow "  laws, 
225-226.  See  Conveyances, 
"  Jim  Crow  "  laws. 

Raleigh,  Sir  Walter,  and  Lost 
Colony,  90-91. 

Reconstruction,  and  "  Black 
Laws,"  62-63;  and  intermar- 
riage, 78-80;  and  separation 
of  races  in  public  convey- 
ances, 209-210. 

Reduction  of  representation  of 
Southern  States  in  Congress, 
287. 


Reformatories,  separation  of 
races  in,  147. 

Relief  trains,  "  Jim  Crow  "  do 
not  apply  to,  221. 

Remarriage  of  Negroes  after 
Emancipation,  68-70 ;  in 
Florida,  68;  in  Georgia,  69; 
in  Missouri,  69. 

Remedies  for  race  problem, 
354-355. 

Repeal  of  laws  against  inter- 
marriage, 89-90. 

Representation  in  Congress, 
reduction  of,  287. 

Residence  as  qualification  for 
voting,  316.  See  Suffrage. 

Restaurants,  race  distinctions 
in,  127-129. 

Restrictions  upon  movements 
of  Negroes,  40-41 ;  in  Ken- 
tucky, 40;  in  South  Carolina, 
40-41.  See  "  Black  Laws." 

Rhode  Island,  repeal  of  law 
against  intermarriage  in,  90; 
qualifications  for  voting  in, 
332-333. 

Robeson  County,  N.  C.,  and 
Croatan  Indians,  91. 

Roosevelt,  President,  on  sepa- 
ration of  races  in  schools  of 
San  Francisco,  160. 


Saloons,    race    distinctions    in, 

132-133;  in  Atlanta,  Ga.,  133; 

in   Nashville,  Tenn.,    133;    in 

Louisiana,  133. 
San     Francisco,     exclusion     of 

Japanese  from  public  schools 


384 


INDEX 


of,  159-163;  separation  of 
races  on  street  cars  of, 
212. 

Schools,  separation  of  races  in, 
154-199;  before  1865,  155- 
170;  present  extent  of  sepa- 
ration in,  170-190;  in  pri- 
vate schools,  190-192;  divi- 
sion of  public  school  fund 
between  races,  194-199. 

Scott,  Dred,  decision,  8;  con- 
travened by  Civil  Rights  Bill 
of  1866,  105. 

Separation  of  Whites  and  Ne- 
groes, in  saloons,  in  Atlanta, 
Ga.,  133;  in  Nashville,  Tenn., 
133;  in  Louisiana,  133;  in 
churches,  141-144;  in  mili- 
tia, 144-145;  State  depend- 
ents, 146-149;  blind,  147; 
lunatics,  147;  mutes,  147; 
paupers,  147 ;  persons  in  re- 
formatories, 147;  prisoners, 
147;  in  schools,  154-199; 
before  1865,  165-170;  pres- 
ent extent  of,  170-190;  in 
public  schools  in  South,  170- 
176;  during  Reconstruction, 
175;  in  States  outside  South, 
177-199;  in  private  schools, 
190-192;  in  public  convey- 
ances, 207-233;  during  Re- 
construction, 209-210;  on 
steamboats,  214;  in  railroad 
cars,  216-227;  on  sleeping 
cars,  219-220;  in  waiting 
rooms,  220-221;  of  postal 
clerks  on  mail  cars,  227;  on 
street  cars,  227-233;  in 
court  rooms,  238. 

26  385 


Service  on  juries  in  South  by 
Negroes,  253-271. 

Sex  as  qualification  for  voting, 
298.  See  Suffrage. 

Sims,  Thetus  W.,  on  proper 
name  for  Negro,  21. 

Skating  rinks,  race  distinctions 
at,  136. 

Slander,  actionable  per  se,  to 
call  White  a  Negro,  26-33. 

Slaughter-House  Cases  inter- 
preting Fourteenth  Amend- 
ment, 107-108. 

Slave  marriages,  reconstruction 
of,  67-75;  certificates  of,  70- 
73;  in  Kentucky,  70-72;  in 
Maryland,  72;  declared  legal 
by  statute,  73-74;  in  Alaba- 
ma, 73 ;  in  Arkansas,  73 ;  in 
Texas,  73;  in  Illinois,  74;  in 
Ohio,  74;  in  Virginia,  74;  in 
West  Virginia,  74;  marriages 
between  slaves  and  free  Ne- 
groes, 74;  in  Tennessee, 
74;  and  Federal  legislation, 
75. 

Sleeping  cars,  separation  of 
races  on,  219-220. 

Social  status  not  a  subject 
of  legislation  in  Georgia, 
80. 

Soda  fountains,  race  distinc- 
tions at,  133-134. 

South  Carolina,  restrictions  on 
movements  of  Negroes  in, 
40-41 ;  limitations  upon  Ne- 
groes in  respect  to  occupa- 
tions in,  42;  keeping  fire- 
arms by  Negroes  limited  in, 
44;  contracts  for  labor  by 


INDEX 


Negroes  in,  48-53;  appren- 
tice laws  in,  55-57;  vagran- 
cy laws  in,  58-59;  pauper 
laws  in,  60-61;  marital  re- 
lations of  Negroes  in,  estab- 
lished, 70;  effect  of  inter- 
marriage in,  85;  punishment 
in,  for  performing  ceremony, 
88;  Negroes  in  militia  of, 
145;  separation  of  races  in 
public  schools  of,  at  present, 
175-176;  on  ferries,  215; 
Negroes  as  witnesses  in,  244; 
actual  service  by  Negroes  on 
juries  in,  267-268;  separate 
courts  for  Negroes  in,  272- 
273;  different  punishments 
for  Whites  and  Negroes  in, 
274;  qualifications  for  voting 
in,  334-335. 

South  Carolina,  University  of, 
open  to  Negroes  during  Re- 
construction, 175. 

South  Dakota,  qualifications 
for  voting  in,  334-335. 

Southern  Education  Associa- 
tion on  race  problem,  356. 

Southern  States,  civil  rights 
legislation  in,  between  1865 
and  1883,  115-120;  after 
1883,  120;  present  extent  of 
separation  of  races  in  public 
schools  of,  170-176;  early 
statutes  in,  on  Negro  jury 
service,  249;  actual  service 
by  Negroes  on  juries  in,  253- 
27 1 ;  reduction  of  represen- 
tation of,  in  Congress,  287. 

Spectator,  Negro  in  court  room 
as,  237. 


Status,  social,  not  a  subject  of 
legislation  in  Georgia,  80;  of 
marriage,  96. 

Steamboats,  separation  of  races 
on,  214. 

Stevens,  Thaddeus,  and  "  Black 
Laws,"  63 ;  opposition  of,  to 
President  Johnson's  plan  of 
Reconstruction,  104. 

Stimson,  Frederick  J.,  on  laws 
of  Michigan  against  inter- 
marriage, 90. 

Street  cars,  separation  of  races 
in,  227-233. 

Suffrage,  Negro,  281-339;  be- 
fore 1865,  282-285;  in  New 
York,  283;  in  North  Carolina 
in  1835,  283;  in  Tennessee  in 
1834,  284;  between  1865  and 
1870,  285-288;  in  District  of 
Columbia,  286;  and  Four- 
teenth Amendment,  287;  be- 
tween 1870  and  1890,  288-294; 
Southern  Suffrage  Amend- 
ments, 294-339 ;  in  insular 
possessions  of  United  States, 
312-313;  constitutionality  of 
Suffrage  Amendments,  313- 
317. 


Taft,  President,  on  suffrage  in 
Porto  Rico,  313. 

Taverns.     See  Restaurants. 

Taxation  for  school  purposes, 
195-199. 

Taxes,  payment  of,  as  qualifi- 
cation for  voting,  299-300. 
See  Suffrage,  Schools. 


386 


INDEX 


Tennessee,  limitations  upon  Ne- 
groes in  respect  to  occupa- 
tions in,  43;  marriages  be- 
tween slaves  and  free  Negroes 
in,  74;  effect  given  to  mar- 
riages in  other  States  in,  93 ; 
civil  rights  legislation  in, 
116-118;  race  distinctions  in 
theatres  in,  134;  separation 
of  races  in,  in  asylums  for 
deaf  and  blind,  148;  in  pub- 
lic schools,  176;  in  private 
schools,  190;  Negroes  as  wit- 
nesses in,  244;  early  statute 
on  Negro  jury  service  in, 
249;  Negro  suffrage  in,  in 
1834,  284;  qualifications  for 
voting  in,  334-335. 

Texas,  slave  marriages  legal  in, 
by  statute,  73;  effect  of  in- 
termarriage in,  85;  separa- 
tion of  races  in  public  schools 
of,  176;  division  of  public 
school  fund  in,  199;  early 
"  Jim  Crow "  law  in,  209 ; 
separation  of  races  in  rail- 
road cars  in,  214;  Negroes 
as  witnesses  in,  244;  actual 
service  by  Negroes  on  juries 
in,  268-269 ;  qualifications 
for  voting  in,  334-335. 

Theatres,  race  distinctions  in, 
134-136. 

Thirteenth  Amendment,  9.  See 
Civil  Eights. 

Times-Democrat,  New  Orleans, 
La.,  sued  for  calling  white 
person  "  colored,"  28. 

Trains  to  which  "  Jim  Crow " 
laws  do  not  apply,  221-222. 


Tribune,  New  York,  on  proper 
name  for  Negro,  22. 

U 

"  Understanding  Clauses "  as 
qualifications  for  voting, 
308-310.  See  Suffrage. 

Unions,  labor,  race  discrimina- 
tions by,  140-141. 

Upper  Alton,  111.,  separation 
of  races  in  public  schools  of, 
179. 

Utah,  selling  liquor  to  Indians 
prohibited  in,  45;  qualifica- 
tions for  voting  in,  334-335. 


Vagrancy  laws,  58-60;  in  South 
Carolina,  58-59;  in  Missis- 
sippi, 59-60;  as  race  dis- 
tinctions, 275. 

Vardaman,  J.  K.,  on  division 
of  public  school  fund  between 
races,  195. 

Vermont,  qualifications  for  vot- 
ing in,  334-335. 

Virginia,  contracts  for  labor 
by  Negroes  in,  47 ;  slave  mar- 
riages legal  in,  by  statute, 
74;  effect  of  intermarriage 
in,  86;  punishment  in,  for 
performing  ceremony,  88 ; 
effect  given  to  marriages  in 
other  States  in,  93;  separa- 
tion of  races  in  public  schools 
of,  176;  on  steamboats  in, 
215;  Negroes  as  witnesses 
in,  245;  Indians  as  witness- 


387 


INDEX 


es  in,  245;  actual  jury  serv- 
ice by  Negroes  in,  269-271; 
intimidation  of  Negroes  at 
polls  of,  293;  qualifications 
for  voting  in,  336-337. 

Voice  of  the  Negro,  on  proper 
name  for  Negro,  20. 

Voting,  qualifications  for,  in 
United  States,  table  of,  322- 
339.  See  Suffrage. 

W 

Waiting  rooms,  separation  of 
races  in,  220-221. 

Washington,  selling  liquor  to 
Indians  prohibited  in,  45; 
Negroes  as  witnesses  in,  246 ; 
Indians  as  witnesses  in,  246 ; 
qualifications  for  voting  in, 
336-337. 

Washington,  Booker  T.,  on  his 
ancestry,  13;  on  proper  name 
for  Negro,  21 ;  and  Hamlet, 
N.  C.,  incident,  221;  on  suf- 
frage, 361. 

Washington,  D.  C.,  City  of 
Refuge  for  miscegenating 
couples,  94;  separation  of 
prisoners  by  race  in,  147 ; 
separate  public  schools  in, 
189. 

West  Virginia,  slave  marriages 
legal  in,  by  statute,  74;  ef- 
fect of  intermarriage  in,  86 ; 
punishment  in,  for  perform- 
ing ceremony,  88 ;  effect  given 
to  marriages  in  other  States 


in,  93 ;  Negroes  in  militia  of, 
145;  separation  of  races  in 
asylums  for  insane  in,  149; 
in  public  schools  of,  186; 
qualifications  for  voting  in, 
336-337. 

"  White,"  omitted  from  stat- 
utes of  Florida,  116;  of  New 
York,  115;  required  on  street 
cars,  231 ;  stricken  from  elec- 
tion laws  of  Dakota  Terri- 
tory, 286;  from  Constitution 
of  Iowa,  286;  from  suffrage 
laws,  288;  still  in  Maryland 
Constitution,  288,  317. 

White,  John,  and  Lost  Colony, 
90-91. 

White  persons,  defamation  to 
call,  Negroes,  26-33;  inter- 
marriage between,  and  Chi- 
nese, 82-83;  and  Kanakans, 
83;  and  Indians,  82-83. 

Wisconsin,  qualifications  for 
voting  in,  336-337. 

Witnesses,  Negroes  as,  241-247. 

Wyoming,  separation  of  races 
in  public  schools  of,  186; 
qualifications  for  voting  in, 
338-339. 


Xenia,  Ohio,  intermarriage  at, 
99. 


Y.  M.  C.  A.,  separation  of  races 
in,   144. 


388 


(1) 


THE    CRIMINOLOGY    SERIES. 

Edited  by  W.  DOUGLAS  MORRISON. 

Political  Crime. 

By  Louis  PROAL.     With  an  Introduction  by  Prof.  F. 
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Socialism  New  and  Old. 

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deals  with  the  conditions  which  produce  the  criminal  population,  and  with  the  method.* 
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as  a  whole. 

D.     APPLETON     AND     COMPANY,     NEW     YORK. 


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